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ANNOTATED  STATUTES 

AND  RULES 


OF 


TRIAL    PRACTICE 


AND 


APPELLATE  PROCEDURE 


IN 


South  Dakota  and  North  Dakota. 


EMBRACING 


Issues,  Trials,  Exceptions,  Bills  of  Exception  and  State- 
ment of  Case,  New  Trials,  Appeals  and   Writs  of 
Error;   in  Both  Civil  and  Criminal  Cases,  in 
all  the  Courts;  Rules  of  the  Supreme 
Courts  of  Both  States;  and  Appel- 
late Procedure;  all  Fully 
Annotated. 


By  CHARLES  EDMUND  DeLAND, 
Of  the  Pierre  Bar.  ^ 


PIERRE 

CARTER  PUBLISHING   CO. 

J896, 


Entered  according  to  Act  of  Congress,  in  the  year  1896,  by 

CHARLES  EDMUND  DeLAND, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


I 


TO 

The  Bap  of  These  Sister  States, 

without  whose  constant  exposition 
and  advocacy  of  the  laws,  their  adjudi- 
cation by  the  bench  could  not  but  be 
less  just  and  enlightened,  this  book 
is  respectfully  dedicated  by  the 
author,  a  laborer  in  the  ranks. 


PREFACE, 


If  the  labor  necessarily  involved  in  the  preparation  of  a  work  upon  trial 
practice  and  appellate  procedure  for  the  Dakotas,  in  the  form  of  compilation 
with  annotations,  shall  prove  to  have  been  done  acceptably  to  the  profession, 
in  this  book,  the  author  ventures  the  opinion  that  no  apology  is  due  for  pre- 
paring: and  presenting  it  to  the  public. 

Based  as  it  is  upon  one  of  the  most  thoroughly  tested  and  enlightened 
of  the  Codes  of  Procedure  in  existence  in  this  country,  whose  chief  features 
are  the  embodiment  of  the  wisdom  of  the  founders  of  that  system,  supple- 
mented by  continued  additions  and  slight  changes  in  furtherance  of  its 
spirit  and  its  efficacy,  through  the  various  revised  Codes,  and  all  embellish- 
ed by  a  constantly  enlarging  field  of  adjudicated  law  which  has 
emanated  from  the  bench  of  the  former  Territory  and  of  the  twin  States  suc- 
ceeding it;  if  only  the  process  of  arrangement  of  the  laws  and  the  digesting 
and  disposition  of  those  decisions  were  properly  done,  the  result  would 
seem  to  be  of  value  to  the  bar  and  bench  in  particular,  whose  joint  duty 
it  is  to  expose  and  apply  their  principles. 

These  decisions  cover  more  than  one  third  of  a  century  of  time;  they 
are  so  numerous  and  so  general  in  their  relation  to  the  body  of  such  pro- 
cedure, as  to  make  necessary  to  a  prompt  and  intelligent  understanding  of 
their  status,  their  collection  in  a  single  book  under  the  appropriate  sec- 
tions of  the  statutes  pertaining  thereto.  The  author  had  spent  a  large  por- 
tion of  his  time  for  years  in  searching  them  out  and  referring  them  to  those 
(among  many  other)  sections  of  the  Compiled  Laws,  the  old  Codes,  and  the 
Session  Laws,  partly  because  it  became  necessary  to  do  so  in  order  to  keep 
in  touch  with  them  in  the  practice  of  his  profession,  but  partly  also  with  a 
view  to  finally  utilizing  them  substantially  as  they  are  made  to  serve  the 
purposes  of  this  work.  These  are  the  reasons  which  led  up  to  the  formal 
effort  here  produced.  The  encouragement  and  commendation  (which  it  is 
hoped  will  prove  to  have  been  in  some  measure  warranted)  which  have  been 
bestowed,  from  the  direction  of  the  bench  and  bar,  in  the  course  of  its  prep- 
aration, have  relieved  the  author  while  engaged  in  the  vast  amount  of 
drudgery  and  perplexity  of  details  involved  in  preparing  the  manuscript 
therefor;  for  which  he  wishes  to  here  make  grateful  acknowledgment. 

The  plan  upon  which  the  book  is  prepared  is  as  follows:  The  section 
of  the  Compiled  Laws  of  1887,  upon  the  subject  in  hand,  is  published  as  such 


yi  PREFACE. 


section  by  its  p.roper  number  in  that  compilatipn,  and  the  cori^esponding 
number  of  the  section  of  the  Revised  Codes  of  North  Dakota  of  1895,  cover- 
ing the  same  provision,  is  given,  in  conhection  with  the  number  of  that  pro- 
vision in  the  compiled  Laws,  at  the  head  of  each  section  as  publisned  in 
this  work;  so  that  the  designation  of    the   section  is  a  double  one,   re- 
ferring to  both  codes.     In  case  a  change  has  been  made  in  North  Da- 
kota   in  the  language  of  any  provision  in  the  Compiled  Laws,  one  of  two 
modes  is  adopted  to  designate  the  particular  language  of  the  Revised  Codes 
in  the  premises,  viz:    If  the  change  is  confined  to  slight  verbal  modifica- 
tions   either  of  subtraction  from  or  addition  to  the  language  of  the  Com- 
piled Laws,  the  section  as  it  stands  in  the  latter  is  published  under  the 
double  designation  as  above  explained;  and  immediately  below   is  found  an 
explanatory  note  in  brackets  showing  the  particular  wording  of  the  North 
Dakota  section  wherein  it  differs  from  that  of  the  Compiled  Laws,  and 
where,  in  the  section,  the  change  is  made.     But  where  the  changes  are  con- 
siderable in  number,  or  in  extent  of  additional  language,  the  North  Dako- 
ta section  is  set  forth  in  full  by  itself  immediately  below  the  corresponding 
section  of  the  Compiled  Laws  under  its  own  number,  in  which  case  the 
South  Dakota  section  has  its  own  number  only.     The  practitioner  is  thus 
furnished  with  the  exact  language  of  both  sections.     The  sections  of  the 
Compiled  Laws  are  published  as  amended  to  date;  and  where  the  subject- 
matter  of  a  given  section  has  been  created  by  the  legislature  through  pro- 
visions other  than  formal  amendments  of  given  sections,  such  legislation  is 
published  in  connection  with  the  pertinent  section  in  the  compilation.     Sec- 
tions of  the  North  Dakota  laws  not  found  in  Compiled  Laws  are  published 
in  the  proper  connection.     References  are  given  under  each  section,  to  the 
corresponding  section  of  the  Codes  of  Procedure,  to  the  page  in  Levisee 
where  it  is  published,  to  Wait's  Annotated  Code  of  New  York,  and  to  Hars- 
ton's  Practice  and  Deering's  Annotated  Codes  and  Statutes  of  California, 
wherever  similar  provisions  are  found  in  those  codes;  also,  to  the  Revised 
Statutes  of  Wisconsin,  of  1878,  from  which  the  provisions  of  the  statute 
governing  appeals  to  the  supreme   court   was  substantially  taken,  in  an- 
notating that  chapter.     References  are  also  made  to  decisions  under  other 
sections  of  the  Codes  embraced  in  this  work.     Where  either  code  has  been 
amended,  the  source  of  the  amendment  is  noted;   and  the  derivation  of 
every  section  is  given.    Then  follow  the  annotations  under  each  section. 
Constitutional  provisions  are  set  forth  in  the  appropriate  connection. 

In  the  main  the  annotations  follow  the  syllabi,  particularly  with  refer- 
ence to  the  state  decisions,  in  which  the  syllabi  are  written  by  the  courts 
of  both  states.  But  the  author  has  not  contented  himself  with  exam- 
ining the  syllabus,  in  any  case.  He  has  exhaustively  examined  every 
opinion,  and  in  some  cases,  where  points  not  brought  out  in  the  syllabus 
are  decided  or  pronounced  upon  in  the  opinion,  such   points  are  brought 


PREFACE.  Vii 

. _____^_ # 

into  the  annotations  by  setting  them  forth  in  substance.  In  still  other 
cases  copiovas  quotations  are  made  from  the  opinion,  in  order  that  some 
question  of  importance  to  the  bar  and  bench  may  be  more  fully  understood 
than  it  could  be  by  publishing  the  syllabus  or  otherwise  stating  the  sub- 
stance of  the  holding.  An  occasional  note  by  the  author  brings  in  points 
and  decisions  outside  of  the  regular  annotations. 

The  rules  of  the  supreme  court  of  each  Slate,  with  full  annotations,  are 
embodied  in  this  work,  and  form  an  important  part  of  it.  The  plan  of  ar- 
rangement of  these  rules  is  substantially  that  followed  in  publishing  the 
statutory  provisions,  the  number  of  the  rule  being  given  at  its  head,  for 
each  state,  where  they  are  identical  in  substance,  and  where  they  quite  ma- 
terially differ,  the  North  Dakota  rule  is  treated  by  itself.  Cross  references 
are  given  under  each  rule.  The  number  of  State  and  Territorial  decisions 
bearing  upon  the  rules  of  court  is  large;  and  the  supreme  court  of  South 
Dakota,  in  particular,  has  rendered  a  large  number  of  decisions  construing 
and  interpreting  its  rules — which  in  nearly  all  cases  are  practically  iden- 
tical with  those  of  North  Dakota. 

Black-face  headnotes  are  placed  at  the  head  of  each  section  and  rule. 
Such  headnotes  are  also  copiously  dispersed  among  the  annotations;  so  that 
the  eye  at  once  catches  the  particular  leading  idea  involved  in  the  decision 
bearing  upon  the  given  subject.  Where  the  number  of  cases  under  the 
given  section  or  rule  is  considerable,  the  Annotations  are  divided  into  de- 
partments. Under  some'statutes  a  large  mass  of  state  and  territorial  de- 
cisions will  be  found  arranged,  there  being  no  less  than  about  400  different 
citations  of  Dakota  Territorial  and  South  and  North  Dakota  cases  found  in 
the  Annotations  under  the  subject  of  New  Trials  alone,  and  referring  to 
over  300  different  cases,  outside  of  those  from  other  states.  These  cases 
(speaking  now  of  this  single  head  of  New  Trials)  embrace  all  classes  of  de- 
cisions which  directly  or  indirectly  involve  the  right  to  or  the  practice  lead- 
ing up  to  or  following  a  new  trial,  as  well  as  rights  entirely  disconnected 
from  procedure,  but  which  are  determined  by  granting  or  refusing  a  new 
trial.  In  this  respect  the  chapter  on  New  Trials  of  civil  cases  is  a  depart- 
ure from  the  general  plan  of  the  work. 

An  additional  feature  of  the  book  is,  that  the  author  has  cited  a  great 
number  of  cases  from  other  States,  in  connection  with  the  principal  case, 
and  which  our  courts  have  i-elied  upon  to  sustain  their  decisions.  This 
course  has  been  pursued  for  various  purposes.  First,  it  is  believed  that  to 
have  not  only  the  decisions  of  both  these  States  and  of  the  former  Territory, 
but  also  those  of  many  other  states,  gathered  together  in  a  single  book  in 
the  shape  of  annotations,  will  be  found  by  the  attorney  and  the  judge  to  be 
an  important  additional  aid  in  many  cases;  and  to  the  attorney  who  may 
not  have  at  hand  the  state  reports  of  his  State  or  the  Northwestern  Report- 
ers, but  who  may  have  the  reports  of  some  other  State,  this  arrangement  will 


Vlll  PREFACE. 

\  


be  of  special  use.  Again,  foreign  attorneys,  living  in  some  State  adjoining 
South  or  North  Dakota,  will  be  able  to  utilize  the  decisions  from  his  own 
State  found  in  this  book,  bearing  upon  statutes  of  his  State  similar  to  those 
here  annoU^ted. 

The  principle  of  citing  cases  is  this:  The  Territorial  (or  State,  jis  the 
case  may  bo)  report  is  first  mentioned,  then  the  Northwestern  Reporter  con- 
taining the  decision;  and  this  double  reference  is  universally  given;  thus 
making  either  set  of  re^wrts  equally  available  throughout  the  work. 
Those  of  the  very  latest  decisions  not  yet  appearing  in  the  State  Reporte 
are  of  course  only  cited  in  the  Northwestern  Reporter,  but  a  blank  space  is 
left  for  insertion  of  the  number  of  volume  and  page  of  the  State  Report  con- 
tiiining  the  decision,  when  published.  The  de'cisions  of  both  states  are 
brought  down  to  the  latest  date. 

The  table  of  cases  was  prepared  by  the  author's  assistant.  Miss  SophieG. 
DeLand;  without  whose  aid  duripg  a  number  of  years  the  book  as  a  whole 
could  not  have  been  prepared  at  this  time.  This  table  is  unusually 
complicated,  the  references  being  to  not  only  this  book  but  to  the  State 
(or  Territorial)  report,  as  well  as  the  Northwestern  Reporter.  In  the  book  it- 
self, owing  to  these  complicated  references,  and  to  the  fact  that  some  cases 
appear  several  times  in  both  sets  of  reports,  some  errors  have  crept  in,  near- 
ly or  quite  all  of  which  are  believed  to  have  been  cori-ected  under  the  head 
of  "Errata,"  at  the  end  of  the  table. of  cases.  The  Itidex,  however,  contains 
the  corrected  references  in  those  instances.  • 

The  Index  is  believed  to  be  a  full  and  more  than  usually  exhaustive 
one.  It  has  been  the  special  aim  of  the  author  to  make  it  so  full  and 
multifarious  as  to  headings,  cross-references,  and  special  topics,  as  to  enable 
the  busy  lawyer  or  judge  to  find  what  he  wants  without  having  to  make 
extended  search  for  it.  How  far  this  aim  has  been  successful  time  will  re- 
veal. 

Owing  to  the  dissimilarity  between  the  corresponding  chapters  upon 
county,  probate  and  justice's  courts,  in  the  two  states,  both  chapters  em- 
bracing those  subjects  are  published,  as  it  was  found  impractical  to  Qonsoli- 
datethem;  and  the  index  references  to  those  chapters  are  in  many  instances 
such,  that  the  highest  numbered  page  refers  to  the  N.  D.  section  or  provis- 
ions (the  N.  D.  chapter  following  that  of  S.  D.). 

A  word  of  explanation  should  be  added,  as  to  where  to  look  for  the  an- 
notations, in  particular  cases.  Where  the  corresi^onding  sections  of  the 
statutes  of  the  two  States  are  both  published,  the  annotations  pertaining  to 
them  are  both  found  below  tJie  North  Dakota  section,  which  follows  that  of 
South  Dakota. 

The  scope  of  this  book  is  indicated  upon  the  title  page.     It  is  intended 
to  cover  completely  the  subjects  therein  mentioned  and  enumerated. 
Pierre,  S.  D.  June  20,  1896, 

Charles  Edmund  DeLand. 


TABLE  OF  CONTENTS. 


Pajje 

Chap.  1 — Issues  and  Modes  of  Trial.     [Code  Civil  Procedure].. 1-8 

Chap.  2— Formation  of  the  Trial  Jury.     [Code  Civil  Procedure] 9-12 

Chap.  3— Of  the  Conduct  of  the  Trial.     [Code  Civil  Procedure] 12-82 

Chap.  4— Of  the  Verdict.     [Code  Civil  Procedure]. 32-45 

Chap.  5 — Of  the  Trial  by  the  Court.     [Code  Civil  Procedure] 45-53 

Chap.  6 — Of  References  and  Trials  by  Referees.     [Code  Civil   Pro- 
cedure]   '. 53-63 

Chap.  7 — Exceptions.     [Code  Civil  Procedure] 63-77 

Chap.  8— Of  New  Trials.     [Code  Civil  Procedure] 77-189 

Chap.  9 — Of  Appeals  in  Civil  Actions.     [Code  Civil  Procedure] 189-254 

Chap.  10— Of  The  Supreme  Court.     [Code  Civil  Procedure] 254-260 

Chap.  11— County  Courts,  S.  D 260-273 

Chap.  12 — Practice  in  County  Courts  With  Increased  Jurisdiction, 

N.  D 273-280 

Chap.  13— Of  Appeal  and  Appeal  Bonds.     [Probate  Code,  S.  D.] 280-289 

Chap.  14— Postponement,  Hearingr  and  Trial.     [Probate  Code,  N.  D.]289-291 

Chap.  15— Appeals.     [Probate  Code,  N.  D.] 291-301 

Chap.  16— Time  of  Trial  and  Postponements.  [Justices'  Code,  S.  D.].  .302-307 

Chap.  17— Trials.     [Justices'  Code,  S.  D.] 307-311 

Chap.  18— Appeals.    [Justices'  Code,  S.  D.] 311-321 

Chap.  19 — Of  Criminal   Proceedings  in   Justices'  Courts.  [Justices' 

Code,  S.  D.] 321-326 

Chap.  20 — Appeals  in  Criminal  Proceedings.  [Justices'  Code,  S.  D.]. 326-329 
Chap.  21 — Appearance,  Postponement  and  Change  of  Venue.    [Jus- 
tices' Code,  N.  D.] 329-333 

Chap.  22— Trial  of  Issue  of  Fact.     [Justices'  Code,  N.  D.] 333-340 

Chap.  23— Appeals.     [Justices'  Code,  N.  D.] 340-344 

Chap.  24 — Trial  Procedure  in  Criminal   Actions.       [Justices'  Code, 

N.    D.] 345-348 

Chap.  25 — Appeals  in  Criminal  Actions.     [Justices' Code,  N.  D.]. .  .348-351 

Chap.  26— The  Mode  of  Trial.      [Code  Criminal  Procedure.] 351-3.53 

Chap.  27 — Formation  of  the  Trial  Jury.     [Code  Criminal  Procedure.]  353-358 

Chap.  28 — Challenging  the  Jurv.      [Code  Criminal  Procedure.] 359-371 

Chap.  29— The  Trial.     [Code  Criminal  Procedure.] 371-401 

Chap.  30 — Conduct  of    the   Jury    After   the  Cause  is  Submitted  to 

Them.     [Code  Criminal  Procedure.] 401-404 

Chap.  31 — The  Verdict.     [Code  Criminal  Procedure.] 404-414 

'Chap.  32 — Bills  of  Exception,  Statement  of  Case.  [Code  Criminal 

Procedure.] 414-424 

Chap.  33— New  Trials.  [Code  Criminal   Procedure.! 424-431 

Chap.  34 — Writ  of  Error,  Appeals.  [Code  Criminal  Procedure.] 431-441 

Chap.  35  —Dismissing  the  Writ  or   Appeal   for  Irregularity.     [Code 

Criminal   Procedure.] 441-442 

Chap.  36 — Argument  of  the    Writs  and  Appeal.     [Code   Criminal 

Procedure]  442-444 

Chap.  37 — Judgment   in    Supreme    Court.     [Code  Criminal  Proced- 
ure.]   ; 444-448 

Chap.  38— Rules  of  the    Supreme  Court.     [S.  D.  and  N.  D.J 448-521 


TABLE  OF  CASES. 


Acme  Harvester  Co.  v.  Axtel,  — S.  D.— ,  65  N.  W.  680 20,  108 

Adams  v.  Smith,  6  Dak.  94,  50  N.  W.  720 194,  209,  252 

Adams  &  Westlake  Co.  v.  Deyette  et  al,  5  S.  D.  418.  59  N.  W.  214 

60,  61,   110,  111,  150,470,479 

Advance  Thresher  Co.,  Hilton  v.;— S.  D.—,  66  N.  W.  816 159,  164 

Ag'l  Works  V.  Young,  — S.  D— ,  62  N.  W.  432 119 

Aiken  et  al,  Braithwaite  v.;  2  N.  D.  57,  49  N.  W.  419 82,  85,  239 

Aikens,  Cir.  Judge,  Pollock  v.;  4  S.  D.  374,  57  N.  W.  1 74 

Aitchinson,  McMillan  et  al  v.;  3  N.  D.  183,  54  N.  W.  1030 113,  122,  134. 

Albien  et  al,  Custer  Co.' v.; —S.  D.— ,  64  N.  W.  533 32,  33,  44 

Aldrich  et  al  v.  Wilmarth,  4  S.  D.  38,  54  N.  W.   1051   487 

Alt  V.  Chi.  &  N.  W.  Ry  Co.,  5  S.  D.  20,  57  N.  W.  1126. .  .64,  68,  86,  138,  180 
American  Sav.  &  Loan  Ass'n  v.  Campbell,   Judge, — S.  D. — ,  65  N.  W. 

gig  234 

Amundson,'  RusseU' &  Co.*  v' ;"  4  N.'  D.'  11 2,  59  N."  W.'  '477'. '. ". '. ". '. '. '. '. '. '. '. '. '. '. '.'.'..  21 

Anderson  v.  Alseth  (on  rehearing),  — S.  D.— ,  66  N.  W.  320 48,  51 

Anderson  v.  Chilson  et  al,   — S.  D.— ,  65  N.  W.  435 62,  194 

Anderson  V.  First  Nat.  Bank  of  Grand  Forks,   N.  D ,   64  N.    W. 

114 82,  107,  109,  122,  130,  160,  183 

Anderson  et  al,  Haveron  v.;   3  N.  D.  540,  58  N.  W.  340 20,  43 

Anderson,  Illstad  v.;  2  N.  D.  167,  49  N.  W.  659 

55,  62,  121,  132,  136,  138,  148,  180,  469,  470,  481 

Archer,  Hudson  V.,-  4  S.  D,  128,  55  N.  W.  1099 117,120 

Archer,  Purdin  v.;  4  S.  D.  54,  54  N.  W.  1043 142,  198 

Archibald,  State  ex  rel  Moore  v.;  — N.  D.— ,  66  N.  W.  234 190 

Arnold  et  al,  Geo.  W.  Van  Dusen  &  Co.  v.;  5  S.  D,  588,  59  N.  W.  961. .  .157 

Arthur.  Coats  v.;  5  S.  D.  274,  58  N.  W.  675 199 

Aultman  &  Taylor  Co.  v.  Gunderson  et  al,  — S.  D.— ,  60  N.  W.  859 

128,  152,  155,  161 

Austin,  Tomlinson  &  Webster  Mfg.  Co.  v   Heiser  et  al;  —  S.  D, — ,  61  N. 

W.  445 267 

Ayres,  Weatherwax  &  Reid  Co.  v.  Sundback,  5  S.  D.  31,  58  N.  W.  4. . . . 

17,  31,  139,  261 

'Ayers,  Weatherwax  &  Reid  Co.  v.  Sundback,  5  S.  D.  362,  58  N.  W.  929 

486,  501 

Axion  Min.  Co.  v.  Little,  — S.  D.— ,  61  N.  W.  441 13 

Bailey  v.  Chi.,  Mil.  &  St.  P.  R.  Co.,  3  S.  D.  531,  54  N.  W.  596 

131,   471 

Bailey  v.  Lawrence  Co.,  — S.  D.— ,  59  N.  W.  219 173 

Bailey  v.  Scott,  1  S.  D.  337,  47  N.  W.  286 189,  212,  213,  237 

Baird  et  al  v.  Gleckler,  3  S.  D.  300,  52  N.  W.  1097 75,  83,  125,  194,  246 

Baker,  Edwards  &  McCulloch  Co.  v.;  2  N.  D.  289,  50  N.  W.  718 

16,  108,  158,  246 


xii  TERRITORIAL  AND  DAKOTA  CASES. 


Baker,  Edwards  &  McCulloch  Co.  v.;  3.N.  D.  170,  54  N.  W.  1026.  .70,  73,  509 

Banbury  v.  Shorin,  4  S.  D.  88,  55  N.  W.  723 68,  480 

Bank  of  Canton,  Farmers'  Bank  of  Frankfort  v.;  — S.  D.— ,  65  N.  W. 

1070 37,  91 

Bank  v.  Kellogpr,  4  S.  D.  312,  56  N.  W.  1071 267 

Bank  v.  Laughlin,  4  N.  D.  391,61  N.  W.  473 18,  135,469 

Bank  of  Minot,  Hoflfman  v.;  — N.  D.— ,  61  N.  W.  1031 

79,  205,  239,  243,  453,  479 

Bank  v.  Mann,  2  N.  D.  456,  51  N.  W.  946 116 

Bank,  McLaughlin  v.;  6  Dak.  406,  43  N.  W.  715 95,  163 

Bank  v.  North,  2  S.  D.  480,  51  N.  W.  98 105,  129,  155,  505 

Bank,  Parker  v.;  3  N.  D.  37,  54  N.  W.  313 48,  51 

Bank  v.  Roberts,   2  N.  D.  195,  49  N.  W.  722 203 

Bank  of  Volga,  City  of  Huron  v.;  — S.  D.— ,  66  N,  W.  816 199 

Bank  v.  Willow  Lake  To.,  1  N.  D.  26,  44  N.  W.  1002 102 

Barber  v.  Johnson,  4  S.  D.  528,  57  N.  W.  226 318 

Barnard  &  Leas  Mfg.  Co.  v.  Galloway  et  al,  5  S.  D.  205,  58  N.  W.  565. . 

Ill,  179,  '194,  209,  246,  250,  470,  479 

Barnes  v.  Clement,  — S.  D.^,  66  N.  W.  810 169 

Barnes,  Clement  v.;  — S.  D.— ,  61  N.  W.  1126 86,  135,  182 

Barnes,  sheriff,  Welsh   v.;  — N.  D.— ,  65  N.  W.  675 195 

Barnes,  sheriff.  State  ex  rel  Mears  v.;  — S.  D.— ,  65  N.  W.  688.  .191,  223,  279 

Bates  V.  Callendar,  3  Dak.  256,  16  N-.  W.  506 155 

Bates  V.  R.  Co..  4  S.  D.  394,  57  N.  W.  72, 19,  101,  104,  107 

Bartilino,  Leonosio  v.;  — S.  D.— ,  63  N.  W.  543 302 

Batterton  v.  Fuller,  — S.  D.— ,  60  N.    W.  1071 118 

Bauder  v.  Schambor  et  al.  — S.  D.— ,  63  N.  W.  227 109,  134,  182,  472 

Bauer,  State  v.;  1  N.  D.  273,  47  N.  W.  378 377 

Bedow  V.  Tonkin,  5  S.  D.  432,  59  N.  W.  222 93 

Belding,  sheriff,  et  al,  Noyes  et  al  v.;  5  S.  D.  603,  59  N.  W.  1069 

8,  80,  90,  123,  126,  145,  154,  155 

Bell,  Jackson  v.;  6  S.  D.  257,  58  N.  W.  671 22,  "^9.  85 

Bell  et  al,  Sanford  v.;  2  N.  D.  6,  48   N.  W.  434  (436) 

13,  18,  102,  142,  148,  152,  188,  193,  246 

Bell  V.  Thomas,  — S.  D.— ,  63  N.  W.  907 80,  211,  212,  478,  487 

Bellon,  Norwegian  Plow  Co.  v.;  4  S.  U.  384,  57  N.  W.  17 Ill,  112,  250 

Bem  et  al  v.  Bern  et  al,  4  S.  D,  138,  55  N.  W.  1102 62,  480 

Bem  et  al  v.  Shoemaker  et  al,  — S.  D.— ,  64  N.  W.  644 216,  217 

Benedict  v.  Johnson,  — N.  D.— ,  57  N.  W.  66 65,  262,  266,  316 

Bennett  v.  Northern  Pac.  R.  Co.,  3  N.  D.  91,  54  N.  W.  314 97,  167 

Bennett  v.  Northern  Pac.  R.  Co.,  2  N.  D.  112,  49  N.  W.  408 96,  129 

Bennett  v.  Northern  Pac.  R.  Co.,  4  N.  D.  348,  61  N.  W.  18 21,  106 

Bently  et  al  v.  Fraley,  1  Dak.  36, 46  N.  W.  505 252,  501 

Berg  et  al,  Perie  et  al  v.;  — S.  D.— ,  64  N.  W.  1 130 89,  144,  200 

Betts  V.  Letcher  et  al,  1  S.  D.  182,  46  N.  W.  193 55 

Bierlien,  Hodges  v.;  4  S.  D.  258,  56  N.  W.  811 86 

Bierlien,  Hodges  v.;  4  S.  D.  219,  66  N.  W.  748 248,  468,  482,  483,  488 

Big  Missouri  Min.  Co.,   Loranger  v.;  — S.    D. — ,  61  N.  W.  686 2 

Bill  V.  Klaus,  4  Dak.  328,  30  N.  W.  171 468 

Bill,  Myrick  v.;  3  Dak.  284,  17  N.  W.  268 141 

Billinghurst,  Dempsey  v.;  — S.  D— ,  64  N.  W.  1124 ' 87,  501 

Billinghurst  v.  Spink  Co.  et  al.,  6  S.  D.  84,  58  N.  W.  272 455,  490,  507 

Billingsley  v.  Hiles  et  al,  ^S.  D.— ,  61  N.  W.  687 

83,  112,  125,  179,  182,  470,  486 

Bingham  v.  Mears,  4  N.  D,  437,  61  N.  W.  808 20,  231 

Bishop  V.  Chi.,  Mil.  &  St.  P.  Ry.  Co.,   4  N.  D.  536,  62  N.  W.  605 

; 21,  100,  133,  140.  166 

Black  Hills  P.  &  M.  Co.  v.  Grand   Island   &  W.  C.  R.  Co.,   2  S.  D.  546, 

51  N.  W.  342 235,  237,  243 


TERRITORIAL   AND   DAKOTA   CASES.  Xlll 


Black  Hills  Mer.  Co.  v.  Gardiner  et  al,  5  S.  D.  256,  58  N.  W.  557 250 

Board  Co.  Com'rs  Hughes  Co.  et  al,  Everett  v.;  1   S.    D.   365,   47  N.  W. 

296 190 

Board  of  Co.  Com'rs  Hughes  Co.,  State  ex  rel  Dollard,  att'ygen'l,  v.;  1 

S.  D.  292,  46  N.  W.  1127 92 

Bode  V.  Now  England  Inv.  Co.,  1  N.  D.  121,  45  N.  W.  197 149,  150 

Bogle,  Caulfield  v.;  2  Dak.  464,  11  N.  W.  511 67,  86,  180,  468,  4b9 

Bolkraan  v.  U.  R.  Co.,   5  Dak.  69,  37  N.  W.  731 98 

Bond  V.  Charleen  et  i\\,  1  Dak.  215.  46  N.  W.  585 511 

Booker  et  al,  Moore  v.;  4   N.  D.  543,  62  N.  W.  607 

50,  76,  77,  82,  94,  127,  137,  160,  214,  229,  232,  519 

Booth,  Purcell  v.;  6  Dak.  17,  50  N.  W.  196 156,  314,  315 

Boss  V.  Northern  Pao.  Ry.  Co.,  2  N.  D.  128,  49  N.  W.  655 16,  25,  26,  64 

Bostwick  et  al  v.  Knight  et  al,  5  Dak.  305,  40  N.  W.  344 65,  243 

Boughner,  State  v.  (on  rehearing);  — S.  D.— ,  63  N.  W.  542. .' 380 

Bough ner.  State  v.;  5  S.  D.  461,  59  N.  W.  736 377,  381,  382 

Bowennan  et  al,  John  A.  Tolman  Co.  v.;  5  S.  D.  197,  58  N.  W.  568.  .■. . . . 

123,  132,  140,  500 

Bowler  v.  Eisenhoi>d,  1  S.  D.  577,  48  N.  W.  136 118 

Bowman  v.  Eppinger,  1  N.  D.  21,  44  N.  W.  1000 

17,  62,  101,  122,131,135,  148 

Bowman  v.  Knott,  — S.  D.— ,  66  N.  W.  457 154 

Boyum  et  al.  Globe  Invest.  Co.  v.;  3  N.  D.  538,  58  N.  W.  389. . .  .468,  469,  513 

Brace  et  al,  Noyes  et  al  v.;  — S.  D.— ,  65  N.  W.  1071 

Bradley,  Evans  v.;  4  S.  D.  83,  55  N.  W.  721 

Bradley,  Lavin  v.;  1  N.  D.  291,  47  N.  W.  384. 
Bradley,  Mort.  Co.  v.;  4  S.  D.  158.  ^^  "^ 
Bradley,  Towle  v.;  2  S-  t^    " 
Braithwaite  ^^    *  '" 
B»"-^' 


,  x.ju,  216,  222 

i59,  113,  133,  170,  472 

..  ^v» 104,  146,  158 

.  ^.  137,  54  N.  W.  099 128 

.  ^aK.  28,  37  N.  W.  753 152,  193 

...  «L  al,  Davenport  v.;  — S.  D.— ,  61  N.  W.  47 148,  158,  488 

ouchanan,  Everett  v.;  2  Dak.  249,  6  N.  W.  439 34,  35, 64, 69 

Building  &  Loan  Ass'n  of   Dak.,   Cranmer  v.;   — S.  D. — ,  61  N.   W.  35 

89,  124 

Bulin,  Judson  v.;  6  Dak.  70.  50  N.  W.  484 318 

Bunker,  State  v.;  — S.  D.— 65  N.  W  33 23,  261,  264,  380 

Burchard,  State  v.;  4  S.  D.  ,548,  57  N.    W.   491 374 

Burdick  v.  Haggart,  4  Dak.  13,  22  N.   W.  589 79,  140,  146 

Burdick  v.  Marshall,— S.  D.— ,  66  N.  W.  462 90 

Burdick,  Marshal,  U.  S.  ex  rel  Soott  v.;  1  Dak.  137,   46  N.  W.  571 191 

Burk  Tp.  of  Minnehaha  Co.  et  al,  Randall  et  al  v.;  4  S.  D.  337,  57  N.  W. 

4 68,  88,  89,  113,  119,  155,  212,  250,  478,  488 

Burleigh,  Dole  v.;  1  Dak.  227,  46  N.  W.  692 51,  67 

Burnside,  Johnson  v.;  3  S.  D,  230,  62  N.  W.  1057 128 

Burrisetal,   Murry  v.;  6  Dak.    170,42  N.  W.  25 305,311 


xii  TERRITORIAL  AND  DAKOTA  CASES. 


Baker,  Edwards  &  McCulloch  Co.  v.;  S^N.  D.  170,  64  N.  W.  1026.  .70,  73,  509 

Banbury  v.  Sherin,  4  S.  D.  88,  55  N.  W.  723 68,  480 

Bank  of  Canton,  Farmers'  Bank  of  Frankfort  v.;  — S.  D.— ,  65  N.  W. 

1070 37,  91 

Bank  v.  Kellogg,  4  S.  D.  312,  56  N.  W.  1071 267 

Bank  v.  Laughlin,  4  N.  D.  391,  61  N.  W.  473 18,  135,  469 

Bank  of  Minot,  Hoffman  v.;  — N.  D.— ,  61  N.  W.  1031 

79,  205,  239,  243,  453,  479 

Bank  v.  Mann,  2  N.  D.  456,  51  N.  W.  946 116 

Bank,  McLaughlin  v.;  6  Dak.  406,  43  N.  W.  715 95,  163 

Bank  v.  North,  3  S.  D.  480,  51  N.  W.  98 105,  129,  155,  505 

Bank,  Parker  v.;  3  N.  D,  37,  54  N.  W.  .S13 48,  51 

Bank  v.  Roberts,   2  N.  D.  195,  49  N.  W.  722 203 

Bank  of  Volga,  City  of  Huron  v.;  — S.  D.— ,  66  N.  W.  816 199 

Bank  v.  Willow  Lake  To.,  1  N.  D.  26,  44  N.  W.  1002 102 

Barber  v.  Johnson,  4  S.  D.  528,  57  N.  W.  225 318 

Barnard  &  Leas  Mfg.  Co.  v.  Galloway  et  al,  5  S.  D.  205,  58  N.  W.  565. . 

Ill,  179,  '194,  209,  246,  250,  470,  479 

Barnes  v.  Clement,  — S.  D.^,  66  N.  W.  810 *. 169 

Barnes,  Clement  v. ;  — S.  D.— ,  61  N.  W.  1126 86,  135,  182 

Barnes,  sheriff,  Welsh   v.;  — N.  D.— ,  65  N.  W.  675 195 

Barnes,  sheriff.  State  ex  rel  Mears  v.;  — S.  D.— ,  65  N.  W.  688.  .191,  223,  279 

Bates  V.  Callendar,  3  Dak.  256,  16  N-.  W.  506 155 

Bates  V.  R  Co..  4  S.  D.  394,  57  N.  W.  72, 19,  101,  104,  107 

Bartilino,  Leonosio  v.;  — S.  D.— ,  63  N.  W.  543 302 

Batterton  v.  Fuller,  — S.  D.— ,  60  N.    W.  1071 118 

Bauder  v.  Schamber  et  al.  — S.  D.— ,  63  N.  W.  227 109,  134,  182,  472 

Bauer,  State  v.;  1  N.  D.  273,  47  N.  W.  378 377 

Bedow  V.  Tonkin,  5  S.  D.  432,  59  N.  W.  222 93 

Belding,  sheriff,  et  al,  Noyes  et  al  v.;  5  S.  D.  603,  59  N.  W.  1069 

: 8.  80.  90.  123.  126.  145.  154.  155 


Belatti  v.  Pierce,  Police  Justice,  —  S.  D.— ,  66  N.  W.  1088 323 


Bierlien,  Hodges  v.;  4  S.  D.  iJ19,  56  N.  W.  748 248,  468,  482,  483,  488 

Big  Missouri  Min.  Co.,    Loranger  v.;  — S.    D. — ,  61  N.  W.  686 2 

Bill  V.  Klaus,  4  Dak.  328,  30  N.  W.  171 468 

Bill,  Myrick  v.;  3  Dak.  284,  17  N.  W.  268 141 

Billinghurst,  Dempsey  v.;  — S.  D— ,  64  N.  W.  1124 ' 87,  501 

Billinghurst  v.  Spink  Co.  et  al.,  5  S.  D.  84,  58  N.  W.  272 455,  490,  507 

Billingsley  V.  Hiles  et  al, -^S.  D.— ,  61  N.  W.  687 

83,  112,  125,  179,  182,  470,  486 

Bingham  v.  Mears,  4  N.  D.  437,  61  N.  W.  808 20,  231 

Bishop  V.  Chi.,  Mil.  &  St.  P.  Ry.  Co.,   4  N.  D.  536,  62  N.  W.  605 

; 21,  100,  133,  140.  166 

Black  Hills  P.  &  M.  Co.  v.  Grand   Island  &  W.  C.  R.  Co.,   2  S.  D.  546, 

51  N.  W.  342 235,  237,  243 


TERRITORIAL   AND   DAKOTA   CASES.  Xlll 


Black  Hills  Mer.  Co.  v.  Gardiner  et  al,  5  S.  D.  256,  68  N.  W.  557 250 

Board  Co.  Com'rs  Hughes  Co.  et  al,  Everett  v.;  1   S.    D.   365,   47  N.  W. 

296 190 

Board  of  Co.  Com'rs  Hughes  Co.,  State  ex  rel  Dollard,  att'ygen'l,  v.;  1 

S.  D.  292,  46  N.  W.  1127 92 

Bode  V.  New  England  Inv.  Co.,  1  N.  D.  121,  45  N.  W.  197 149,  1-50 

Bogle,  Caulfield  v.;  2  Dak.  464,  11  N.  W.  511 67,  86,  180,  468,  4b9 

Bolkraan  v.  R  R.  Co.,    5  Dak.  69,  37  N.  W.  731 98 

Bond  V.  Charleen  et  al,  1  Dak.  215,  46  N.  W.  585 511 

Booker  et  al,  Moore  v.;  4   N.  D.  543,  62  N.  W.  607 

50,  76,  77,  82,  94,  127,  137,  160,  214,  229,  232,  519 

Booth,  Purcell  v.;  6  Dak.  17,  50  N.  W.  196 156,  314,  315 

Boss  V.  Northern  Pac.  Ry.  Co.,  2  N.  D.  128,  49  N.  W.  655 16,  25,  26,  64 

Bostwick  et  al  v.  Knight  et  al,  5  Dak.  305,  40  N.  W.  344 65,  243 

Boughner,  State  v.  (on  rehearing);  — S.  D.— ,  63  N.  W.  542. .' 380 

Boughner,  State  v.;  5  S.  D.  461,  59  N.  W.  736 377.  381,  382 

Bowerman  et  al,  John  A.  Tolman  Co.  v.;  5  S.  D.  197,  58  N.  W.  568 

123,  132,  140,  5n0 

Bowler  v.  Eisenhood,  1  S.  D.  577,  48  N.  W.  136 118 

Bowman  v.  Eppinger,  1  N.  D.  21,  44  N.  W.  1000 

17,  62,  101,   122,  131,  135,  148 

Bowman  v.  Knott,  — S.  D.— ,  66  N.  W.  457 154 

Boyum  et  al.  Globe  Invest.  Co.  v.;  3  N.  D.  538,  58  N.  W.  339. . .  .468,  469,  513 

Brace  et  al,  Noyes  et  al  v.;  — S.  D.— ,  65  N.  W.  1071 173 

Bradley,  Evans  v.;  4  S.  D.  83,  55  N.  W.  721 241 

Bradley,  Lavin  v.;  1  N.  D.  291,  47  N.  W.  384 51 

Bradley,  Mort.  Co.  v.;  4  S.  D.  158,  55  N.  W.  1108 65,  248 

Bradley,  Towle  v.;  2  S.  D.  472,  50  N.  W.  1057     226,  227,  228,  314,  318 

Braithwaite  v.  Aiken  et  al,  2  N.  D.  57,  49  N.  W.  419 82,  85,  239 

Braithwaite  v.  Jordan  et  al,  --N.  D.  — ,  65  N.  W.  701 219 

Braithwaite,  North  Star  Boot  &  Shoe  Co.  v.;  4  Dak.  454,  34  N.  W.  68. . .  .42 

Brakke,  Valliar  v.   (on  rehearing);  — S.  D.— ,  64  N.  W.  1119 155 

Branstetter  v.  Morgan,  3  N.  D.  290,  55  N.  W.  758 43,  122,  134 

Brennan,  State  v.;  2  S.  D.  384,  50  N.W.  625 132,  422 

Briggs,  People  v.;  1  Dak.  289,  46  N.  W.  451 408 

Brooks  Elevator  Co.,  Hostettor  v.;  4  N.  D.  357,  61  N.  W.  49 

67,  69,  113,  116,  138,  139,  181,  213,  247,  468,  469,  473 

Brown  et  al  v.  Edmunds  et  al,  6  S.  D.  508,  59  N.  W.  731 

235,  501,  510,  512 

Brown  Co.,  Flypaa  v.;  — S.  D.— ,  62  N.  W.  962 116,  150,  216,  222 

Brown  V.  McCaul  et  al,— S.  D.— ,  60  N.  W.  151 39,  113,  133,  170,  472 

Brundage  v.    Mellon,  — N.  D.— ,  63  N.  W.  209 104,  146,  158 

Bruns,  N.  W.  Fuel  Co.  v.;  1  N.  D.  137,  54  N.  W.  699 128 

Bruns,  Nichols  v.;  5  Dak.  28,  37  N.  W.  753 152,  193 

Buchanan  et  al,  Davenport  v.;  — S.  D.— ,  61  N.  W.  47 148,  158,  488 

Buchanan,  Everett  v. ;  2  Dak.  249,  6  N.  W.  439 34,  35,  64, 69 

Building  &  Loan  Ass'n  of  Dak.,   Cranmer  v.;   — S.  D. — ,  61  N.  W.  35 

89,  124 

Bulin,  Judson  v.;  6  Dak.  70,  50  N.  W.  484 318 

Bunker,  State  v.;  — S.  D.— 65  N.  W  33 23,  261,  264,  380 

Burchard,  State  v.;  4  S.  D.  ,548,  57  N.    W.   491 374 

Burdick  v.  Haggart,  4  Dak.  13,  22  N.   W.  589 79,  140,  146 

Burdick  v.  Marshall,— S.  D.— ,  66  N.  W,  462 90 

Burdick,  Marshal,  U.  S.  ex  rel  Soott  v.;  1  Dak.  137,   46  N.  W.  571 191 

Burk  Tp.  of  Minnehaha  Co.  et  al,  Randall  et  al  v.;  4  S.  D.  337,  57  N.  W. 

4 68,  88,  89,  113,  119,  155,  212,  250,  478,  488 

Burleigh,  Dole  v.;  1  Dak.  227,  46  N.  W.  692 51,  67 

Burnside,  Johnson  v.;  3  S.  D.  230,  52  N.  W.  1057 128 

Burrisetal,   Murry  v.;  6  Dak.    170,42  N.  W.  25 305,311 


XlV  TERRITORIAL   AND   DAKOTA   CASES. 


Bushetal  v.  Northern  Pac.   Ry.  Co.,  3  Dak.  444,  22  N.   W.   508 

; 180,  467,  468 

e.  AUman&Co.  v.  Ginn,  1  N.  D.  402.  48  N.  W.  336 ...161 

Cadv  V.  Chi.,  M.  &  St.  P.  Ry.  Co.,  5  Dak  97,  37  N.  W.  221 251 

Cady  et  al,  Cole  et  al  v.;  2  Dak.  29,  3  N.  W.  322 ; 239,  512 

Caldwell  v.  Maxfield  et  al,  — S.  D.— ,  64  N.  W.  166 19 

Caledonia  Gold  Min.  Co.  v.  Noonan  et  al,  3  Dak.  189,  14  N.  W.  426 

49,  67,  93,  119.  131,  137,  247 

California  Ins.  Co.,  Travelers'  Ins.  Co.  v.;  1  N.  D.  151.  50  N.  W.  706. . . . 

208,  209,  220,  242.  243,  318 

Calkins  v.  Seabury-Calkins  Consol.  Min.  Co.,  5  S.  D.  299,  58  N.  797. . . . 

68,  146,  468,  480 

Callender,  Bates  v.;  3  Dak.  256,  16  N.  W.  506 155 

Callender  v.  Edmison  et  al,  — S.  D.— ,  65  N.  W.  425 203 

Campbell,  Judge,  American   Sav.  &  Loan  Ass'n   v.;  — S.  D — ,  65  N.  W. 

815 2:^4 

Carapbetl,  Cir.  Judge,  Ciiy  of  Huron  v.;  3  S.  D.  309.  53  N.  W.  182 191 

Canham  v.  Piano  Mf 'g  Co.,  3  N.  D.  229,  55  N.  W.  583 163 

Capital  Bank  of  St.  Paul  v.  School  Dist.  No.  53  of  Barnes  Co.,  1  N.  D. 

479,  48  N.  W.  363 102 

Carlson   v.    Sioux  Falls  Water  Co.  (on  rehearing),  — S.  D. — ,  65  N.  W. 

419 21,  100 

Carroll  et  al,  Quefhec  Bank  v.;  1  S.  D.  1,  44  N.  W.  723 208,  224,  238 

Carson  et  al  v.  Gillitt  et  al,  2  N.  D.  255,  50  N.  W.  710 18,  101 

Carter,  City  of  Huron  v.;  5  S.  D.  4,  57  N.  W.  947 4,  190,  309,  358,  511 

Casperson,  Tollerton  &  Stetson  Co.  v.;  — S.  D.— ,  63  N.  W.  908 

'. 206,  214,  226.  232,  483,  486,  508 

Caul  field  v.  Bogle.  2  Dak.  464,  11  N.  W.  511 67,  86,  180,  468,  469 

Cawley  et  al  v.  Day  et  al,  4  S.  D.  221.  56  N.  W.  749 50,  113,  136 

Chacey  v.  City  of  Fargo,  — N.  D.— ,  64  N.  W.  932 88,  i)6 

Champion  v.  Com'rs,  6  Dak.  416,  41  N.  W.  739 8,  194,  209,  351,  354 

Chandler  v.  Kennedy,  — S.  D.— ,  65  N.  W.  439. 52,  73,  137,  162,  182 

Chapman  et  al.  State  v.;  1  S.  D.  414,  47  N.  W.  41 1 

115,  271,  363,  366,  367,  416,  418 

Charleen  et  al.  Bond  v.;  1  Dak.  215,  46  N.  W.  585 511 

Chase,  Hannah  v.;  — N.  D.— ,  61  N.   W.  18 88 

Cheatam  v.  Wilbur,  1  Dak.  335,  46  N.  W.  580 64 

Chi.,  Mil.  &  St.  P.  Ry.  Co.,  Bailey  v.;  3  S.  D.  531,  54  N.  W.  596 131,  471 

Chi.,  Mil.  &  St.  P.  Ry.  Co.,  Cady  v.;  5  Dak.  97,  37  N.  W.  221 251 

Chi.,  Mil.  &  St.  P.  Ry.  Co.,  Church  v.;  — S.  D.— ,  60  N.  W.  854 166 

Chi.,  Mil.  &  St.  P.  Ry.  Co.,  Coates,  v.;  — S.  D.— .  65  N.  W.  1067 91,  93 

Chi.  Mil.  &  St.  P.  R.  Co.,  Elliott  v.;  5  Dak.  523,  41  N.  W.  758 168 

Chi.  Mil.  &  St.  P.  R.  Co.,  Gates  v.;  2  S.  D.  422,  57  N.  W.  200 159 

Chi.,  Mil.  &  St.  P.  Ry.  Co.,  Harrison,  v.;  — S.  D.— ,  60  N.  W.  405. . 

98,  103,  166,  486,  489,  501 

Chi.,  Mil.  &  St.  P.  Rv.  Co.,  Haugen  v.;  3  S.  D.  394,  53  N.  W.  769 10,  11 

Chi.,  Mil.  &  St.  P.  Ry.  Co.,  Hebron  et  al  v.;  4  S;  D.  538,  57  N.  W.  494. . 

97,  103 

Chi.  Mil.  &  St.  P.  Ry.  Co.,  Huber  v.;*6  Dak.  392,  43  N.  W.  819 98 

Chi.  Mil.  &  St.  P.  Ry.  Co.,  Ki-onk  v.;  3  S.  D.  93",  52  N.  W.  420 37 

Chi.  Mil.  &  St.  P.  R.  Co.,  Lighthouse  v.;  3  S.  D.  518,  54  N.  W.  320..  .18,  100 

Chi.  Mil.  &St.  P.  Ry.  Co.,  Meuer  v.;    3  S.  D.  322,  53  N.  W.  187 455 

Chi.  Mil.  &  St.  P.  Ry.  Co.,  Peart  v.;  5  S.  D.  337,  58  N.  W.  806 

29  31   81  201 
Chi.  MiV.  &  St.  P.'  Ry!  Co.,  Saunders  v.;'  —  S.  D.  — ,  60  N.  W^^  . .'. . .'.  99 

Chi.  Mil.  &  St.  P.  Ry.  Co.,  Sheldor  et  al  v.;  —  S.  D.  — ,  62  N.  W.  955. . .   18 

Chi.  Mil.  &St.  P.  Ry.  Co.,  Smith  v.;  4  S.  D.  30,54  N.  W.  931 481,508 

Chi.  Mil.  &St.  P.  Ry.  Co.,  Smith  v.;  4  S.  D.  71,  55  N.  W.  717 

21,  87,98,117,134 


TERRITORIAL   AND    DAKOTA    CASES.  XV 


Chi.  Mil.  &  St.  P.  Ry.  Co.,  Store  v.;  —  S.  D.  — ,  65  N.  W.  29 50,  90 

Chi.  Mil.  &  St.  P.  Rv.  Co.,  Sweet  v.,  —  S.  D.  — ,  60  N.  W.  77 100 

Chi.  Mil.  &  St.  P.  Ry.  Co.,  Uhe  v.;  4  S.  D.  505.  57  N.  W.  484 

22,  25,  63,  64,  150 

Chi.  Mil.  &  St.  P.  Ry.  Co.,  Uhe  v.;  3  S.  D.  563,  54  N.  W.  601 .. .  .26,  124,  229 
Chi.  Mil.  &  St.  P.  R.  Co.,  White  v.;  1  S,  D..  326.  47  N.  W.  146. . .  .97, 239,  241 
Chi.  &  N.W.  Rv.  Co.,  Alt  v.;  5  S.  D.  20,  57  N.  W.  1126. . .  .64,  68,  86,  138,  180 

Chi.  &  N.  W.  Ry  Co.,  Karr  v.;  6  Dak.  14,  50  N.  W.  125 312,  315 

Chi.  &  N.  W.  Rv.  Co.,  Kelsev  v.;  1  S.  U.  80,  45  N.  W.  204 97,  98,  134 

Chi.  St.  P.,  M.  &0.  R.  Co.,  Bolkman  v.;  5  Dak.  69,  37  N.W.  731 98 

Chi.  St.  P.,  M.  &0.  R.  Co.,  Page  v.;  —  S.  D.  — .  64  N.  W.  137 93 

Chi.  St.  P.,  M.  &  O.  R.  Co.,  Wendt  v.,  4  S.  D.  476,  57  N.  W.  226 

92,  110,  123,  124,  12.5,  140,168 

Chi.  &  N.  W.  Ry.  Co.,  Karr  v.;  6  Dak.  14,  50  N.  W.  125 312,  315 

Chilson  et  al,  Anderson  v.;  —  S   D.  — ,  65  N.  W.  435 62,  194 

Christensen,  Searles  v.;  —  S.  D.  — ,  60  N.  W.  29. . .  .83,  151,  233,  234,  481,  488 

Christensen.  Territory  v.;  4  Dak.  410,  31  N.  W.  847 375,  380 

Church  V.  Chi.,  Mil.  &  St.  P.  R.  Co.,  —  S.  D.  — .  60  N.  W.  854 166 

Church,  State  v.;  —  S.  D.  — .  60  N.  W.  143. .  .108,  369,  375,  377,  380,  382,  399 
Church,  St<xte  v.  (on  rehearing);  —  S.  D.  — ,  64  N.  W.  152. . .  .400,  403, 404,  428 

Church  etal.  Winona  Lumber  Co.  v.;  —  S.  D.  — ,  62  N.  W.  107 118 

Citizens  Bank  v.  Crouch,  3  S.  D.'  410,  53  N.  W.  862 481,  490,  508 

Citizens  Nat.  Bank  of  Madison,  Dielmann  v.;  —  S.  D.  — ,  66  N.  W.  311.. 741 

14,  91,  127 

City  of  Chamberlain,  Nat.  Tube  Works  Co.  v.;  5  Dak.  54,  37  N.  W.  761. .  48 

City  of  Fargo,  Chacev  v.;  —  N.  D.  — ,  64  N.  W.  932 88,  96 

City  of  Grafton,  Ouverson  v.;  —  N.  D.  — ,  65  N.  W.  676. 

21,  22,   103,  117,  130,  167,  168 

City  of  Grand  Forks,  Larson  v.;  3  Dak.  307,  19  N.  W.  414 85 

Citv  of  Huron  v.  Bank  of  Volga,  —  S.  D.  — ,  66  N.  W.  815 199 

City  of  Huron  v.  Campbell,  Cir.  Judge.  3  S.  D.  309,  53  N.  W.  182 191 

Citv  of  Huron  v.  Carter.  5  S.  D.  4,  57  N.  W.  947 4,  190,  309,  358,  511 

City  of  Huron,  Huron  Waterworks  Co.  v.;  4  S.  D.  102,  55  N.  W.  759. . . . 

93,  223,  241 

Citv  of  Huron,  Schaetzel  v.,  (White,  intervenor);  ---  S.  D.  — .  60  N.  W. 

*741 8,  13,  241.  351,  354 

City  of  Mitchell,  Edinburg-American  Land  &  Mort.  Co. v.;  1  S.  D.  693,  48 

N.W.  134 60,  89,  109,  136 

Citv  of  Rapid  Citv  et  al,   ShicUlo-Harrison  &  Howard  Iron  Co.  v.;  —  S. 

'  D.  — ,  66  N.  W.  499 .506 

City  of  Sioux  Falls  v.  Kirby,    —  S.  D.  — ,  60  N.  W.  156 190,  207,  511 

City  of  Sioux  Falls  et  al,  Pettigrew  et  al  v.;  5  S.  D.  646,  60  N.  W.  27. . . . 

82,  146,  151 

City  of  Vermillion,  Jenkinson  et  al,  v.;  3  S.    D.   238,  52  N.   W.  1066. 

82,    110,    128 

Citv    of  Vermillion,  Vermillion    Artesion   Well,    E.,   L.,    M.,  I.    &  I. 

'Co.  V.;— S.  D.— ,  61  N.   W.  802 86,  123,  130 

Clark  V.  Evans  et  al,  — S    D  — ,  60  N.  W.  862 87,  130,  155 

Clark  V.  Wallace  et  at,  1  N.  D.  404,  48  N.  W.  339 162,  163 

Clement  v.  Barnes,  — S.  D.— ,  61  N.  W.   1126 86,  135,  182 

Clement,  Barnes  v.,  — S.  D.— ,  66  N.  W.    810 : 169 

Cleveland  v.  Evans  et  al,  5  S.  D.  53.  58  N.  W.  8 483,  488,  510 

Clough  et  al,  Corbett  et  al  v.;  — S.  D— ,  65  N.  W.    1074 20,  121,  127 

Coates  V.  Chi.  Mil.  &  St.  H  Ry.  Co.,  — S.  D.—,  65  N.  W.  1067 91,  93 

Coates,  Stamra,  v.;  4  Dak.  69,  22  N.  W.  593 15,  27,  80,  132 

Coats  V.  Arthur,  5  S.  D.  274,  58  TST.  W.  675 199 

Cobban,  Farmer  v.;  4  Dak.  425,  29  N.  W.  12 193 

Cole  v.  Custer  Co.  Ag'l,  Mineral  &  Stock  Ass'n,  3  S.  D.  272,  52  N.  W. 

1086 .2,  3,  48 


XVI  TEUUITORIAL   AND   DAKOTA   CASES. 


Colo  et  al  V.  Cacly  et  al,  2  Dak.  29,  3  N.  W.  322 239,  512 

Coler  et  al  v.  Rhoda  School  Tp.,   — S.  D.—  63  N.  W.  158. . .  .87, 164,  165,  174 

Collins  et  al,  GtuJe  v.;  — S.  D.— ,  66  N.  W.  466 ]  11,  165,  2(K),  246 

Comaskey  v.  Northern  Pivc.  R.  Co.,  3  N.  D.  276,  55  N.    W.  732 22,  171 

Comford,  First  Nat.  Bank  v.;  4  Dak.  167,  28  N.    W.  855 179,  247 

Commercial  Nat.  Bank  et  al,  Smith  et  al,  v.;  — S.  D. — ,  64  N.  W.  52S). . 

65,  248 

Commercial  Nat.  Bank  v.  Smith  et  al,  1  S.  D.  28  44  N.  W.    1024 83,  190 

ComVs,  Champion  v.;  5  Dak.  416,  41  N.  W.  739 8,  194,  209,  351,  354 

Connor  V.  Knott. —S.  D.—,  66  N.    W.   461   119 

Conner  v.  Nat.  Bank  of  Dak.  et  al,  — S.  D.— ,  64  N.  W.  519. . .  .119,  16J,  249 

Conrad  et  al,   Ormsby  v.;  4  S.  D.  599,   67  N.  W.  778. 83 

Conrad  v.  Smith,  sheriff,  2  N.  D.  408,  51  N.  W.  720 134 

Conrad,  Territory  v.;  1  Dak.  348,  46  N.  W.  605 409 

Consolidated  Land  &  Ii-rigation  Co.  v.  Hawley  , sheriff,  — S.  D. — ,  63. . . 

N.  W.  904 103,  141 

Cooley  et  al,  Harkins  v.;  5  S.  D.  227,  58  N.  W.  560 2,  38,  50,  481 

"   Corbett  et  al  v.  Clough  et  al,  — S.  D.— ,  65  N.  W.  1074 20,  121,  127 

Corrigan  et  al.  Reeves  &  Co.  v  ;  3  N.  D.  415,  57  N.  W.  80. . .  .17,  88,  133,  161 

Corson  et  al,  Scheffer  et  al  v.;  5  S.  D.  2:^3.  58  N.  W.  555 84 

Coughran.  Turner  v.;  — S.  D.— .  66  N.  W.  810 201 

Coughran  v.  Wilson,  — S.  D.— ,  63  N.  W.  771 156,  265 

Couk,  Territory  v.;  2  Dak.  188,  47  N.  W.  395 386 

Ci-anmer  v.  Building  &  Loan  Ass'n  of  Dak.,  — S.  D.— ,  61  N.  W.  35.  .89,  124 

Cranmer  v.  Kohn  et  al,  — S.  D.— ,  64  N.  W.  125 169 

Crouch,  Citizens  Bank  v.;  3  S.  D.  410,  53  N.  W.  862 481,  490,  508 

Crouch,  Himebaugh  v.;  3  S.  D.  410,  53  N.  W.  862 481,  490,  505,  508 

Cross,  sheriff.  North rup  v.;  2  N.  D.  433,  51  N.  W.  718 42,  43,  154,  172 

Crow  Dog,  U.  S.  v.;  3  Dak.  106,  14  N.  W.  437 386 

Custer  Co.  v.  Albien  et  al,  — S.  D.— ,  64  N.  W.  533 32,  33,  44 

Custer  Co.  Ag'l,  Mineral  &  Stock  Ass'n,  Cole  v.;  3  S.  D.  272,  52  N.  W. 

1086 2,  3,  48 

Daeley  et  al  v.  Minn.  &  N.  E.  Co.,  4  N.  D.  269,  60  N.  W.  50 

16,  133,  138,  469 

Dak.  F.  &  M.  Ins.  Co.,  Gude  et  al  v.;  — S.  D.— ,  65  N.  W.  27 121,  143 

Dak.  F.  &  M.  Ins.  Co.,  Kent  v.;  2  S.  D.  300,  50  W.  85 

54.  55,  61,  126,  136,  137,  138,  151.489 

Dak.  F.  &  M.  Ins.  Co.,  South  Bend  Mfg.  Co.  v.;  2S.  D.  17,  48  N.  W.  310 

103 

Dak.  Loan  &  Trust  Co.,  Ulrick  v.;  2  S.  D.  285,  49  N.  W.  1054  (on  rehear- 
ing); 51  N.  W.  1023 83 

Dalbkermeyer  v.  Scholtes  et  al,  3  S.  D.  183,  52  N.  W.  871 : 485,  488 

Dalbkermeyer  v.  Scholtes  et  al,  3  S.  D.  124,  52  N.  W.  261 511 

Daly,  Longley  v.;  1  S.  D.  257,  46  N.  W.  247 85 

Davenport  v.  Buchanan  et  al,  — S.  D.— ,  61  N.  W.  47 148,  158,  488 

Davenix)rt,  Ryan  v.;  5  S.  D.  203,  58  N.  W  568 233 

Davey  et  al  v.  First  Nat.  Bank  of  Dead  wood,  —S.  D.— ,  66  N.  W.  122..  .113 

Davis  v.  Iverson  et  al.  5  S.  D.  295,  58  N.  W.  796 140 

Davis  et  al  v.  Mathews,  — S.  D  — ,  66  N.  W.  456 160 

Davis,  State  ex  rel  Edwards  v.;  2  N.   D.  461,  51  N.  W.  942 236,  237,  432 

Day  et  al,  Cawley  et  al  v.;  4  S.  D.  221,  56  N.  W.  749 50,  113,  136 

Day  et  al,  Johnson  v.;  2  N.  D.  295,  50  N.  W.  701 49,  157 

Dazey,  Doran  v.;  — N.    D.— ,  64  N.  W.  1023 213 

Dean,  Henry  v.;  6  Dak.  78,  50  N.  W.  487 66,  69,  112 

De  Groat,    Heger,    v.;  3  N.  D.  354,  56  N.  W.  150 

16.  95,  126,  142,  147,  171,  172 

De  Larav  et  al.  Fish  et  al,  v.;  — S.  D.— ,  66  N.  W.   465 142 

DeLendfecie  v.  Peck,  1  N.  D,  422, 48  N.   W.  342 49,  64,  65,  246 


TERRITORIAL   AND    DAKOTA    CASES.  XVii 

Dell  Rjipids  Tn.,  Van  Antwerp  v.;  3  S.  D.  305,  53  N.  W.  82;  (on   rehear-. . . 

ing)  5  S.  D.  447,  59  N.  W.  209 173 

Demraon  v.  Mullen,    — S.  D.— ,  02  N.  W.  380 105 

Dempsey  v.  Billinghurst,  — S.  D.— ,  64  N.  W.    1124 87.  501 

DeWitt,  Willis  v.;  3  S.  D.  281,  52  N.  W.  1090 41,  43 

Deyette  et  al,  Adams  &  Westlake  Co.  v  ;  5  S.  D.  418,  59  N.  W.  214 

/ 60,  61,  110,  111,  150,  470,  479. 

Dielman  v.  Citizens  Nat.  Bank  of  Madison,  — S.  D.— ,  66  N.  W.  311 

14,  91,  127 

D.  M.  Osborn  &  Co.,  Humpfner  v.;  2  S.  D.  310,  50  N.  W.  88 48 

Dole  V.  Burleigh,  1  Dak.  227,  46  N.  W.   692. 51,  67 

Donnelly,  Slattery,  v.;  1  N.  D.  264.  47  N.  W.   375 102 

Doran  v.  Dazev,  — N.  D.— ,  64  N.  W.  1023 213 

Dows  et  al  v.  Glaspel,  4  N.  D.  251.  60  N.  W.  60 92,  140,  159,  170 

Drew  elal  v.  Watertown  F.  Ins.  Co.,  — S.  D.— ,  61  N.  W.  34 81,  111,  133 

Duluth   &   D.    El.   Co.,  Gould    v.;  3  N.    D.   96  (101),  54  N.  W.  316  (318) 

51,     511 

Duluth  &  D.  El.  Co.,  Gould  v.;  2  N.  D.  216,  50  N.    W.   969 

152.  179,  181.  182,  183 

Duluth  Dry-Goods  Co.  v.  Heidel  et  al,  4  N.  D.  427,  61  N.  W.  155. . .  .214,  464 

Dunstan  v.  Northern  Pac.  R.  Co..  2  N.  D.  46,  49  N.  W.  426 171 

Dupree  v.  Stanley  Co.  et  al,  — S.  D.  -  ,  65  N.  W.  426 195 

Eaton,  In  re;  4  N.  D.  514;  62  N.  W.  597 88,  174 

Edinburg-American  Land  &  Mort.  Co.  v.  City  of  Mitchell,  1  S.  D.  593, 

48  N.  W.  134 60,  89,  109,  136 

Edminster  v.  Rathbun,  3  S.  D.  129.  52  N.  W.  263 312,  320 

Edmison  et  al,  Callende.  v.;  —  S.  D.  — ,  65  N.  W.  425 203 

Edmunds  ex  al.  Brown  et  al  v.;  5  S.  D.  508,  59  N.  W.  731. . .  .235,  501,  510,  512 

Edwards,  Farrell  v.;  —  S.  D.  — ,  66  N.  W.  812 158,  170,  203 

Edwards  &  McCulloch  Co.   v.  Baker,  2  N.  D.  289,  50  N.  W.  718 

16,  108,  158,  246 

Edwards  &  McCullooh  Co.  v.  Baker,  3  N.  D.  170,  54  N.  W.  1026.  .70,  73,  509 

Egan,  Territory  v.;  3  Dak.  125.  13  N.  W.  568. .271,  368 

Eisenhood,  Bowler  v.;  1  S.  D.  577.  48  N.  W.  136 118 

Elevator  Co.,  Fuller  v.;  2  N.  D.  220,  50  N.  W.  359. : 113 

Elevator  Co.,  Gould  v.;  2  N.  D.  216,  50  N.  W.  970 86,  135,  236 

Elevator  Co.,  LaRue  v.;  3  S.  D.  637,  54  N.  W.  806 168 

Ell  V.  Northern  Pacific  R.  Co.,  1  N.  D.  336,  48  N.  W.  222 168,  169 

Elliott  V.  R.  R.  Co.,  5  Dak.  523,  41  N.  W.  758 168 

Ellis  V.  Wait,  4  S.  D.  31,  54  N.  W.  925 131,  471,  487,  490,  513 

Ellis  V.  Wait,  4  S.  D.  504,  57  N.  W.  232 504 

Enderlin  State  Bank  v.  Jennings,  4  N.  D.  228,  59  N.  W.  1058 197,  198 

Engle  V.  Yorks,  — S.  D.— ,  64  N.    W.  132. 5,  38,  45,  156,  286.  287 

English  v.  Goodman  et  al,  3  N.  u.  129,  54  N.  W.  540 31,  39 

Enos  et  al  v.  St.  Paul  F.    &   M.    Ins.    Co.,  4  S.  D.  639,  57  N.  W.  919. . . . 

. . .  .• 36,    130,  131 

Eppinger,    Bowman   v.;   1    N.    D.   21,  44  N.  W.  1000 

17,  62,  101,  122,  131,  135,  148 

Esshon  V.  Watertown  Hotel  Co.,  — S.  D.— ,  63  N.  W.  229. . .  .92,  127,  147,  470 

Evans  v.  Bradlev,  4  S.  D.  83,  55  N.  W.  721 241 

Evans  et  al,  Clark  v.;  — S.  D.— .  60  N.  W.  862 87,  130,  155 

Evans  et  al.  Cleveland  v.;  5  S.  D.  58,  58N.  W.  8 483,  488,  510 

Evans  et  al.  Gress  v.;  1  Dak.  371,  46  N.  W.  1132  . . .  .66,  205,  212,  246,  250,  480 

Evans  v.  Hughes  Co..  4  S.  D.  33..  64  N.  W.    1049 252 

Evans,  Plunkett  v.;  2  S.  D.  434.  50  N.   W.  561 261 

Evans,  Waldron  v.;    46  N.   W.  607 112.  152,  246,  249,  513 

Evanson,  Nollman  et  al  v.;  1  Dak.  — N.  D.—    65  N.  W.  686.  .86.  197,  199,  213 
Evenson  v.  Webster,  3  S.  D.  382,  53  N.- W.  747 51,  111,  132,  146,246,  484 


XViii  TERRITOIIIAL  AND  DAKOTA  CASES. 


Everitt  v.  Board  of  Co.  Com'rs  Hughes  Co.,  et  al,  1   S.  D.  365  47  N.  W. 

296 190 

Everett  v.  Buchanan,  2  Dak.  249,  6  N.  W.  339 34,  35,  64,  69 

Fahey  v.  Machine  Co.,  3  N.  D.  220,  55  N.  W.  580 17,  105,  133,  148 

Falde,  Kennedy  v.;  4  Dak.  319,  2t)  N.  W.  667 68,  480 

Fall  V.  Johnson,  — S.  D.— ,  65  N.  W.  909 146,  147 

Fall  River  Co.  v.  Powell,  5  S.  D.  49,  58  N.  W.  7 90 

Fargo  Gas  &  Coke  Co.  v.  Fargo  G.  &  E.  Co.,  4  N.  D.  219,  59  N.  W.  1066 

17,  22,  170,  171 

Fargo  G.  &  E.  Co.,  Fargo  Gas  &  Coke  Co.  v.;  4  N.  D.  219,  59  N.  W.  1066 

17.  22,  170,  !71 

Fargo  Gas  &  E.  Co.,  Hazeton  Boiler  Co.  v.;  4  N.  D.  365,  61  N.  W.  151 ....  18 

Fargo  et  al  v.  Jennings,  —3.  D.— ,  65  N.  W.  433 203 

Fargo  et  al  v.  Palmer  et  al,  4  Dak.  232,  29  N.  W.  463 

66,  205,  212,  458,  468,  480 

Faris,  sheriff,  Jones  Lum.  &  Mer.  Co.  v.;  — S.  D.— ,  60  N.  W.  403 

69,  101,  135,  151.  153,  194,  234,  246,  481,  484,  485,  488,  489 

Farmer  v.  Cobban,  4  Dak.  425,  29  N.  W.  12 193 

Farmers'   Bank  of  Frankfort  v.    Bank  of  Canton,  — S.  D. — ,  65  N.  W. 

1070 37,  91 

Parmer's,  etc..  Bank  v.  School  Dist.  No.  53,  6  Dak.  2-55,  42  N.  W.  767. . .  .102 
Farmers'  Shipping  Ass'n  et  al,  Loftus  et  al  v.;  — S.  D. — ,  66  N.  W.  1076 

142,  143,  165 

Farrell  v.  Edwards,  — S.  D.— ,  66  N.  W.  812 158,  170,  203 

Farrington  v.  New  England  Inv.  Co.  et  al.,  1  N.  D.  102,  45  N.'  W.  191 . . 

144,  145 

Fai-ris  v.  Vannier;  6  Dak.  186,  42  N.  W.  31 195 

Faulkner,  McCormick  H.  M.  Co.  v.;  — S.  D.— ,  64  N.  W.  163 

19,   104,  128,  161 

Feldenheimer  v.  Tressel,  6  Dak.  94,  50  N.  W.  720 252 

Feldman  v.  Trumbower,  — S.  D.— ,  64  N.  W.  189 48,  87 

Ferguson,  Frye  et  al  v.;  — S.  D.— ,  61  N.  W.  161 ...  .80,  112,  131,  132,  133,  189 

Feury  v.  McCormick.  H.  M.  Co..  — S.  D.— ,  61  N.  W.  162 88,  172 

Field  et  al  v.  Great  Western  El.  Co.,  — N.  D.— ,   67  N.  W.  147 510 

Finney  v.  R.  R.  Co.,  3  Dak.  270,  16  N.  W.  500 86.  94 

First  Nat.  Bank  v.  Comford,  4  Dak.  167,  28  N.  W.  855 179,  247 

First  Nat.  Bank  v.  Northwestern  Elevator  Co.,  2  S.  D.  356,  50  N.  W.. . 

356 205,  478 

First  Fat.  Bk.  of  Deadwood,  Davey  et  al,  v.;  — S.  D.— ,  66  N.  W.  122. . .  .113 
First  Nat.  Bk.  of  Devil's  Lake  v.  Merchants'  Nat.    Bk.    Devil's  Lake  et 

al,  — N.  D.-,64  N.  W.  941 68,  73,  138,  181,213,469,  472 

First  Nat.  Bank  Grand  Forks,  Anderson  v.;  — N.  D.— ,  64  N.  W.  114. . . . 

82,    107,  109.  122,  130,  160,  183 

First  Nat.  Bank  of  Pierre  v.  Smith  et  al,  — S.  D.— ,  65  N.    W.  437 

22  87    125    147 
Fish'et'al'  v.  "r)eLaray''et  'a\,  — S.'  D.— ,66  N.' "  W.  465.'. ...... . .  .\  ..'.....'.  142 

Fisher,  Gage  v.;  -N.  D.— ,  65  N.  W.  809 202 

Flagg  V.  School  Dist.  No.  70,  — N.  D— .  65  N.  W.  674 164 

Flick,  Frost  v.;  1  Dak.  131.  46  N.  W.  508. 144 

Foley- Wadsworth  Implement  Co.  v.  Porteous,  — S.  D.— ,  63  N.    W.    155 

67,  187,  199,  200,  214,  486,  487.  513. 

Folsom,  Halley  v.;  1  N.  D.  325,  48  N.    W.  219 95,  122,  161 

Foote,  Wambole  v.;  2  Dak.  1,  2  N.  W.  239 .239.  240,  247 

Forberg,  Harvester  Co.  v.;  2  S.  D.  357,  50  N.  W.  628 303 

Foster  v.  Lumber  Co.,  5  S.  D.  57,  58  N.  W.  9 198 

Fraley,  Bently  et  al  v.;  1  Dak.  36,  46  N.  W.  505 252,  501 

Francis  &  Southard,  Miner  v.;  3  N.    D.  549.  58  N.  W.  343 316,  320 

Frank,  Jordan  et  al  v.;  1  N,  D.  206,  46  N.  W.  171 , . . ,  .J19 


TERRITORIAL   AND    DAKOTA   CASES.  XIX 


Franz  Palk  Brewing  Co.  v.  Mielenz  ef.  al,  5  Dak.  136,  37  N.  W.  728 

86,    138,  468,  470,  472,  484 

Frazer  et  al,  State  ex  rel  Bartlett  v.;  1  N.  D.  425,  48  N.  W.  343 115 

Freeman,  Red  River  Val.  Nat.  Bk.  of  Fargo  v.;  1  N.  D.  196,  46  N.  W.  36 

173,  236,  238 

Fremont  E.&  M.    M.    V.    R.   Co.,    Bates  v.;4S.  D.   394,  57  N.  W.    72 

19,  101,  104,  107 

Fremont,  E.  &  M.  V.   R.  Co.,    Humphreus  v.;  — S.  D.— ,  65  N.  W.  466 

20,    97 

Fremont,  E.  &  M.  V.  R.  Co.,  Lewislv.;  — S.  D.— ,  63  N.  W.  781.... 103,  135 
Fremont  E.  &  M.  V.  R.  Co.,   Mattoon.;  — S.    D.— ,  60  N.  W.    740 

18.  99,  100,  101,  119,179,  500 

Fremont,  E.  &  M.  V.  R.  Co.,  Sprague  v.;  6  Dak.  86,  50  N.  W.  617. . .  .96,  172 
Fremont,  E.  &  M.  V.  R.  Co.,   Yankton   F.   Ins.  Co.  v.;  — S.  D.— ,  64  N. 

W.   514 19,  46,  102 

French  v.  Lancaster,  2  Dak.  276,  9  N.  W.  716 66,  205,  212,  469,  480 

Fromherz  v.  Yankton  Fire  Ins.  Co.,  — S.  D.— ,  63  N.  W.  784 19,  103 

Frost  V.  Flick,  1  Dak.  131,  46  N.  W.   508 144 

Fuller,  Batterton  v.;  — S.  D.— ,  60  N.    W.  1071 118 

Fuller  V.  Elevator  Co.,  2  N.  D.  220,  50  N   W.  359 113 

Fuller  V.  Northern  Pac.  R.  Co.,  2  N.  D.  220,  50  N.  W.  359 94 

Frye  et  al  v.  Ferguson,  — S.  D.— ,  61  N.  W.  161...  .80,  112,  131,  132,  133,  189 
Fly  pa  V.  Brown  Co.,    -S.  D.— ,  62  N.  W.   962 116,  150,216,  222 

Gaar,  Scott  &  Co.  v.  Spaulding,  2  N.  D.  414,  51  N.  W.  867 

47,  49,  51,  80,  211,  237,  459,  460 

Gade  v.  Collins  et  al,  — S.  D.— ,  66  N.  W.  466 Ill,  155,  209,  246 

Gage  V.  Fisher,  — N.  D.— ,  65  N.  W.  809 202 

Gaines  v.  White,  sheriff,  1  S.  D.  434,  47  N.  W.  524 35,  42,  67,  84,  178 

Galligan  et  al.  Seaman  v.;  — S.  D.— ,  66  N.  W.  458 141.  145,  153 

Galloway  et  al,  Barnard   &  Leas  Mfg.  Co.  v.;  5  S.  D.  205,  58  N.  W.  565 

Ill,  179,  194,  209,  246,  250,  470,  479 

Galloway  v.  McLean,  2  Dak.  372,  9  N.  W.  98 68,  201,  480 

Gardiner  et  al,  Black  Hills  Mer.  Co.  v.;  5  S.  D.  256,  58  N.  W.  557 250 

Garrison  et  al,  Uhlig  v.;  2  Dak.  99,  2  N.  W.  258 32 

Gates  v.  Ry.  Co.,  2  S.  D.  422,  57  N.  W.  202 169 

Gay,  Territory  v.;  2  Dak.  125,  2  N.  W.  477 376,  381,  382,  399.  405,  427 

Geo.  W.  Van  Dusen  &  Co.  v.  Arnold  et  al,  5  S.  D,  588,  59  N.  W.  961 157 

George  v.  Triplett,  — N.  D.— ,  63  N.  W.  891 124 

Ger.  Tns.  Co.,  School  Dist.  No.  116  v.;  — S.  D.— ,  64^.  W.  527 104 

Giddings,  Rapp  v.;  4  S.  D.  492,  57  N.  W.  237 17,  110,  133 

Gilbert  et  al,  Moline  Plow  Co.  v.;  3  Dak.  239,  15  N.  W.  1 16,  36,  94 

Gillitt  et  al,  Carson  et  al  v.;  2   N.  D.  255,  50  N.  W.  710 18,  101 

Gilman  et  al,  Kellogg,  Johnson  &  Co.  v.;  3  N.  D.  538,  58  N.  W.  339 

38,  44,  81, 134 

Gilman,  Plymouth  Co.  Bank  v.;  6  Dak.  304,  50  N.  W.  194 

101,  109,  126,  159,  168,  248 

Gilmcre  et  al.  Goose  River  Bank  v.;  3  N.  D.  188,  54  N.  W.  1032 

73,  75,  189,  213,  463,  471 

Gilmcre,  Johnson  v.;  — S.  D.— ,  60  N.  W.  1070 

67,  95,  117,  123,  130,  131,  138,  146,  471,  481,  487.  506 

Gilruth,  Stewart  v.;  — S.  D.— ,  65  N.  W.  1065 20,  161 

Ginn,  C.  Altman  &  Co.  v.;  1  N.  D.  402,  48  N.  W.  336 161 

Glaspel,  Dows  et  al  v.;  4  N.  D.  251,  60  N.  W.  60 92,  140,  159,  170 

Gleckler,  Baird  et  al  v.;  3  S,  D.  300,  52  N.  W.  1097 75,  83,  125,  194,  246 

Gleckler  et  al  v.  Slavens  et  al,  5  S.  D.  364,  59  N.  W.  323 93,  122,  130 

Globe  Invest.  Co.  v.  Boyum  et  al,  3  N.  D.  538,  58  N.  W.  339 468,  469,  513 

Godfrey,  Territory  v.;  6  Dak.  46,  50  N.  W.  481 377 

Gold  St.  V.  Newton,  in  re  opening,  2  Dak.  149,  3  N.  W.  329: 

.64,  68,  139,  205,  458,  480 


XX  TERRITORIATi  AND   DAKOTA  CASES. 


Gold  St.  V.  Newton,  in  re  opening,  2  Dak.  39,  3  N.  W.  311,  8  N.  W.  180 

204,  211,  463,  507 

Golden  Terra  Min.  Co.  v.  Smith  et  al,  2  Dak.  377, 11  N.  W.  98 

49,  66,  75,  84,  111,  137,  174,  205,  212,  480 

Goodman  etal,  English  v.;  3  N.  D.  129.  54  N.  W.  540 31,39 

Goose  River  Bank  v.  Gilmore  et  al,  3  N.  D.  188,  54  N.  W.  1032 

73,  75,  189,  213,  463,  471 

Gordan  et  al,  Haxtun  Steam  Heater  Co.  v.;  2  N.  D.  246,  50  N.  W.  708. . .  .114 

Gotzian  &  Co.  v.  McCollum,  sheriff,  —  S.  D.  — ,  65  N.  W.  1068 84 

Gould  V.  Duluth&D.  El.  Co.,  3  N.  D.,  96(101),  54  N.  W.  316  (318). ..  .61,  511 

Gould  V.  Duluth  &  D.  El.  Co.,  2  N.  D.  216,  50  N.  W.  969 

152,  179,  181,  182,  183 

Gould  V.  Elevator  Co.,  2  N.  D.  216,  50  N.  W.  970 86,  135,  236 

Gram  v.  Northern  Pac.  R.  Co.,  1  N.  D.  252,  46  N.  W.  972 

21,  22,  95,  96,  103,  128.  166,  167,  509 

Grand  Island  &  W.  C.  R.  Co.,  Black  Hills  P.  &  M.  Co.  v.;  2  S.  D.  508.  59 

N.  W.  731 235,  237,  243 

Granger  v.  Roll  et  al,  —  S.  D.  — ,  62  N.  W.  790 94,  152,  209,  240,  241,  512 

Grant,  Hart  v.;  —  S.  D.  — ,  66  N.  W.  322 196,  200 

Grant  v.  Grant,  —  S.  D.  — ,  60  N.  W.  743 83,  86,  237 

Great  Western  El.  Co.,  Pield  et  al  v.;  —  N.  D.  — ,  67  N.  W.  147 150 

Greeley  v.  McCoy,  3  S.  D  624,  54  N.  W.  659 252 

Greeley  v.  Windsor,  3  S.  D.  138,  52  N.  W.  674 8 

Greeley  v.  Windsor  et  al,  1  S.  D.  618,  48  N.  W.  214 239 

Greeley  v.  Windsor  et  al,  2  S.  D.  361,  50  N.  W.  630 241,  312 

Green  v.  Hughitt  School  Twp. .  5  S.  D.  452,  -59  N.  W.  224 123 

Greenleaf  v.  Greenleaf,  —  S.  D.  — ,  61  N.  W.  42 88,  151 

Greenly  v.  Hopkins,  —  S.  D.  — ,  64  N.  W.  1128 209,  483,  487,  513 

Gress  v.  Evens  et  al,  1  Dak.  371,  46  N.  W.  1132 66,  205,  212,  246,  250,  480 

Griggs  etal.  Hennessy  v.;  1  N.  D.  52,  44  N.  W.  1010 158 

Grigsby  et  al  v.  Minnehaha  Co.,  —  S.  D.— ,  64  N.  W.  179 500 

Grigsbv  v.  Western  Union  Tel.  Co.,  5  S.  D.  561,  59  N.  W.  734 

. . .'. 4,  5,  19,  45,  46,  102,  146,  159 

Grlswold  V.  Sundback  et  al,  (on  rehearing),  4  S.  D.,  441,  60  N.  W.  1068. . 

38,  42,  102,  144,  154 

Gude  et  al  v.  Dak.  P.  &  M.  Ins.  Co.,  —  S.  D.  — ,  65  N.  W.  27 121,  143 

Guenthner,  Thompson  &  Sons  Mfg.  Co.  v.;  5  S.  D.  504,  59 N.  W.  729,  237,  510 

Gull  River  Lum.  Co.  v.  Keefe  et  al,  6  Dak.  160,  41  N.  W.  743 4 

Gull  River  Lum.  Co.  v.  School  Dist.  No.  39,  1  N  D.  500,  48  N.  W.  427. . . 

47,  49,  52 

Gunderson  et  al,  Aultman  &  Taylor  Co.  v.;  —  S.  D.  — ,  60  N.  W.  859. . . 

128,  152,  155,  161 

Gunderson.  Hackett  v.,  1  S.  D.  479,  47  N.  W.  546 245,  511,  512 

Hackett  v.  Gunderson,  1  S.  D.  479,  47  N.  W.  546 245,  511,  512 

Hafsoos,  State  v.;  IS.  D.  382,  47  N.  W.  400 269 

Haggart,  Burdick  v.;  4  Dak.  13,  22  N.  W.  589 .79,  140,  146 

Haggart,  Keith  v.;  2  N.  D.  18,  48  N.  W.  432 16,  108,  127 

Haggert,  Roberts  v.;  4  Dak.  210,  29  N.  W.  656 500 

Hall  V.  Harris  (on  rehearing),  2  S.  D.  331,  50  N.  W.  98 64 

Halley  v.  Poison,  1  N.  D.  32-5,  48 IST.  W.  219 95,  122,  161 

Halvorson  v.  Mort.,  Bank  &  Investment  Co.,  — N.  D.— ,  54  N.  W.  1026. . 

83,  238 

Hannah  v.  Chase,  — N.  D.— ,  61  N.  W.   18 88 

Hannawalt,  Sykes  v.;  — N.  D.— ,  65  N.  W.  682 116 

Hansen  et  al,  Kehoe  v.;  — S.  D.— ,  65  N.  W.  1075 

172,  248,  455,  482,  489,  513 

Hanson  v.  Tp.  of  Red  Rock,  — S.  D.— ,  63  N.  W.  156 

87,  123,  124,  132,  158 


TERRITORIAL   AND    DAKOTA   CASES.  Xxi 


Hardy  v.  Purinton.  treasurer,  — S.  D.— ,  61  N.  W.  158 212 

Harkins  v.  Cooley  et  al,  5  S.  D.  227,  58  N.  W.  560 2,  38,  50,  481 

Harney  Peak  Tin  Min.,  Mill.  &  Mfg.  Co.  et  al,  Marshall  et  al    v.;  1   S. 

D.  350,  47  N.  W.  290   (on  rehearing  3  S.  D.  473,  54  N.  W.  272) 

13,  148,  206,  454.  507 

Harrigan  et  al.  Van  Brunt  &  Davis  Co.  v  ;  — S.  D.— ,  65  N.  W.  421.  .20,  118 

Harris,  Hall  v.  (on  rehearing-;  2  S.  D.  331.  50  N.  W.  98 64 

Harris  Mfg.  Co.  v.  Wnlsh,  2  Dak.  41,  3  ,N.  W.  307 239 

Harris  v.  Watkins,  "S  Dak.  374,  40  N.  W.  536 321 

Harrison  v.  ChL,  Mil.  &  St.  P.  R.  Co.,  — S.  D.— ,  60  N.  W.  405 

; 98,  103,  166,  486,  489,  501 

Hart  V.  Grant,  — S.  D.— ,  66  N.  W.  322 196,  200 

Harvester  Co.  v.  Foi-berg,  2  S.  D.  357,  50  N.  W.  628 303 

Haseleu  et  al,  Prairie  School  Tp.  v.;  3  N.  D.  328,  55  N.  W.  938.  .111,  128,  165 

Haserodt  et  al,  Holden  v.;  2  S.  D.  220,  49  N.  W.  97 454 

Haserodt  et  al,  Holden  v.;  3  S.  D.  4,  51  N.  W.  340 507 

Haslediihl,  State  v.;  2  N.  D.  521,  52  N.  W.  315. .  .3,  12,  364,  385,  397,  403,  404 

Hasledahl,  State  v.;  3  N.  D.  36,  53  N.  W.  430 352 

Hatch  et  al  v.  Northern   Pac.  R.  Co.;  — N.  D.— ,  63  N.  W.  207 85 

Haugen  v,  Chi.,  Mil.  &  St.  P.  R.  Co..  3  S.  D.  394,  53  N.  W.  769 10,  11 

Haveron  v.  Anderson  et  al,  3  N.  D.  540,  58  N.  W.  340 20,  43 

Hawkins  v.  Hubbard,  2  S.  D.  631,  51  N.  W.  774 

61,  111,  180,  209,  240,  245,  470,  479,  512 

Hawlev,   sheriff,  Consolidated  Land  &  Irrigation  Co.  v.;  — S.  D. — ,  63 

N.'W.  904 103,  141 

Hawthorne  et  al,  Martin  v.;  3  N.  D.  412,  57  N.  W.    87 114,  116 

Haxtuin  Steam  Heater  Co.  v.  Gordan  et  al,  2  N.  D.  246,  50  N.  W.  708 1 14 

Hazelton  Boiler  Co.  v.  Fargo  Gas  &  E.  Co..  4  N.  D.  365,  61  N.  W    151 ...  .18 

Hazen,  Jasper  v.;  1  N.  D.  210,  46  N.  W.  173 211,  458,  463.  506 

Hazen,  Jasper  v.;  1  N.  D.  75,  44  N.  W.  1018 .35,  143 

Hazen,  Jasper  v.;  4  N.  D.  1,  58  N.  W.  454 88,  91,  155,  247 

Hebron  et  al  v.;  Chi.  Mil.  &  St.  P.  R.  Co.,  4  S.  D.  538,  57  N.  "W.  494.  .97,  103 
Heger  v.  DeGroat,  3  N.  D.  354,  56  N.  W.  150. . .  1,  6,  95  126.  142,  147,  171,  172 

Heger,  Schmitz  v.;  — N.  D.— ,  64  N.  W.  943 138,  139,  181,  469 

Hei'del  et  al,  Duluth  Dry-Goods  Co.  v.;  4  N.  D.  427,  61  N.  W.  155. . .  .214,  464 
Heidel  et  al.  Merchants'  State   Bk.   of   Fargo  v.;  4  N.  D.  427,  61  N.  W. 

155 214,  464 

Heidel  et  al,  Walter   A.    Wood  Har.  Co.  v.;  4  N.  D.  427,   61  N.  W.  155 

214,  464 

Heiser  et  al,  Austin,  1  omlinson  &  Webster  Mfg.  Co.  v.;  — S.  D. — ,  61  N. 

W.    445 267 

Helwig,  In  re,  5  S.  D.  272,  58  N.  W.  674. 517 

Hennesy  v.  Griggs  et  al,  1  N.  D.  52,  44  N.  W.  1010 158 

Henry  v.  Dean,  6  Dak.  78,  50  N.  W.  487 66,  69,  112 

Herbert  v.  Northern  Pac.  R.  Co..  3  Dak.  38,  13  N.  W.  349 10,  12.  145 

Herman,- Rudolph  v.;  2  S.  D.  399,  50  N.  W.    833 226,  312,317 

Herman,  Rudolph  v.;  4  S.  D.  430,  57  N.  W.  65 317,  319 

Herman,  Rudolph  v.;  4  S.  D.  203,  56  N.   W.    122 8,  82,  314,  317,  319 

Hicks  et  al.  State  v.;  — S.  D.— ,  60  N.  W.   66 388 

Hiles  et  al,  Billingsly  v.;  — S.  D.— ,  61  N.  W.  687 

83,    112,  125,  179,  182,  470,  486 

Hilton  V.  Advance  Thresher  Co.,  — S.  D.— ,  66   N.  W.  816 159,  164 

Himebaugh  v.  Crouch,  3  S.  D.  410,  53  N.  W.  862 481,  490,  505.  508 

Hodges  v.  Bierlien,  4  S.  D.  219,  56  N.  W.  748 248,  468,  482,  483,  488 

Hodges  V.  Bierlien,  4  S.  D.  258,  56  N.  W.  811 86 

Hodges,  Rosum  v.;  1  S.  D.  313,  47  N.  W.    140 141 

Hodgins  v.  Minpls.,  St.  P.  &  S.  Ste.  M.  R.    Co.,  3  N.  D.  382,  56  N.  W. 

139 21,  99 


XXii  TERRITORIAL  AND   DAltOTA   CASES. 


Hoffman  v.  Bank  of  Minot,  — N.  D.—,  61  N.  W.  1031 

79,  205,  239,  243,  453,  479 

Hoffman  V.  Mort.,  Bank&  Inv.  Co..  4  N.  D.  1032,  61  N.  W.  1031.. 205,  2:^,^3 

Holcomb  et  al  v.  Keliher,  3  S.  D.  497,  54  N.  W.  535 67,  181,  470 

Holden  v.  Hsiserodt  et  al,  2  S.  D.  220,  49  N.  W.  97 4.54 

Holden  v.  Haserodt  et  al,  3  S.  D.  4.  51  N.  W.  340 507 

Holt  V.  Van  Eps,  1  Dak.  198,  46  N.  W.  689 13,  51 

Hopkins,  Greenley  v.;  — S.  D.— ,  64  N.  W.  1128 209,  483,  487,  513 

Hormann  v.  Sherin,  — S.  D  — ,  60   N.  W.   145 3J,  37,  42,  89,  101,  160,  202 

Hostetter  v.  Brooks  Elevator  Co.,  — N.  D.— ,  61    N.  W.  49 

67.  69,  113,  116,  138,  139,  181,  213,  247,  468,  469,  473 

Houghton,  in  ve,  5  S.  D.  537,  59  N.  W.  733 195,  207,  509 

Hubbard,  Hawkins  v.;  2  S.  D.  631,  51  N.  W.  774 

• 61,  111,  180,209,  240,246,470,  479.512 

Hubbard,  Price  v.;  — S.  D.—  65  N.  W.  436 19,  108 

Huber  v.  Railway  Co.,  6  Dak  312,  43  N.  W.  819 98 

Hudson  V.  ArcheV,  4  S.  D.  128.  55  N.  W.  1099 117,  120 

Hughes  Co.,  Evans  v.;  4  S.  D.  33,  54  N.  W.  1049 252 

Hughes  Co.,  Waterworks  Co.  v.;  5  DaK.  145,  37  N.  W.  733 192 

Hughitt  School  Tp.,  Green  v.;  5  S.  D.  452,  59  N.  W.  224 123 

Hugos  et  al,  Upton  v.;  — S.  D.— ,  64  N.  W.  523 .37,  113,  115 

Hurapfner  v.  D.  M.  Osborne  &  Co.,  2  S.  D.  310,  50   N.  W.  313 48 

Humphreus  v.  Fremont,  E.  &  M.  V.  R.  Co.;  — S.  D.— ,  65  N.  W.  466.  .20,  97 

Huntimer  et  al.  Olson  v.  (on  rehearing);  — S.  D. — ,  66   N.  W.  313 170 

Huron  Waterworks  Co.  v.  City  of-Huron,  4  S.  D.  102,  55  N.  W.  759. . . . 

! 93.  223,  241 

Huron  Printing  &  Bindery  Co.  v.  Kittleson  et  al,  4  S.  D.  520,  57  N.  W. 

233 86 

Huron  Nat.  Bank,  Staples  v.;  — S.  D.— ,  66  N.  W.  314 164 

Hutchinson  Co.,  Liberty  Tp.  v.;  — S.  D.—,  64  N.  W.  1117 196 

lllstad  V.  Anderson,  2  N.  D.    167,  49  N.  W.  659 

56,  62,  121,  132,  136,  138,  148,  180,  469,  470,  481 

Ingalls,  Laney  v.;  5  S.  D.  183,  58  N.  W.  572 14 

Ingli,  Warder,  Bushnell  &  Glessner  Co.  v.;  IS.  D.  155,  46  N.  W.   181 . . 

101,  119,  122,134 

Ins.  Co.,  Johnson  v.:  1  N.  D.  167,  45  N.  W.  799 132 

Ins.  Co.  v.  Weber,  2  N.  D.  239,  50  N.  W.  703 235 

In  re  Eaton.  4  N.  D.  514,62N.  W.  597 88,  174 

In  re  Helwig,  5  S.  D.  272,  58N.  W.  674 517 

In  re  Houghton,  5  S.  D.  537,  59  N.  W.  733 195,  207.  509 

In  re  Lackey,  — S.  D.— ,  62  N.  W.  134 191,  325 

In  re  Opening  Gold  St.  v.  Newton,  appellant,  2  Dak.  149,  3  N   W.  329. . 

64,  68, 139,  205,  458,  480 

In  re  Opening  Gold  St.  v.  Newton,  appellant,  2  Dak.    39,  3  N.  W.  311,  8 

N.  W.  139 204,  211,453,507 

In  re  McCabe,  — N.  D.— ,  67  N.  W.  143 510 

In  re  Spaulding  et  al,  — S.  D.— ,  66   N.  W.  462 90 

In  re  Weber,  4  N.  D.  119,  59  N.  W.  523 .2:^5,  236,  243,  320,  510 

Investment  Co.  v.  Boyum,  3  N.  D.  538,  58  N.  W.  339 138 

Iowa  StJite  Bank  v.  Jacobson,  — S.  D.— ,  66   N.  W.  453 139,  143,  150,  486 

Irving,  Town  of  Dell  Rapids  v.;  —S.  D-—.  64  N.  W.  149 173 

Isaacson,  State  v.;  — S.  D.— ,  65  N.  W.  430 377 

Iverson  et  al,  Davis  v.;  5  S.  D.  295,  58  N.  W.  796 140 

Jackson  v.  Bell,  5  S.  D.  2,57,  58  N.  W.  671 22,  39,  85 

Jackson  v.  Mayor,  etc.,  4  N.  D.  478,  61  N.  W.  1030 48 

Jacobson,  Iowa  State  Bank  v.;  — S.  D.— .  66  N.  W.   453. . .  .139,  143,  150,  486 

Jasper  v.  Hazen,  IN.  D.  75,  44  N.  W.    1018 35,  143 

Jasper  v.  Hazen,  1  N.  D.  208,  46  N.  W.    173 211,  458,  403,  506 


TERRITORIAL   AND    DAKOTA   CASES.  xxiii 


Jasper  v.  Hazen,  4  N.  D.  1,  58  N.  W.  4o4 88,  91,  155,  247 

Jeansch  v.  Lewis  et  al,  1  S.  D.  609,  48  N.  W.  128 93,  126,  134,  140,  472 

Jenkinson  v.  City  of  Vermillion,  3  S.  D.  238.  52  N.  W.    1066 82,  110,  128 

Jennings,  Enderlin  State  Bank  v.;  4  N.  D.  228,  59  N.  W.  1058 197,  198 

Jennings,  Fargo  et  al  v.;   — S.  D.— ,  65  N.  W.  433 203 

Jerauld  Co.  v.   Williams  et  al,  — S.    D. -,  63  N.    W.  905 

55,  57,  136,  142,  143,  170,  489 

Jewett  et  al  v.  Sundback,  sheriff,  5  S.  D.  Ill,  58  N.  W.  :?0 

: 17.    106,  121,  126,  127,  153,  173 

J.  I.  Case  T.  M.  Co.  v.  Pederson,  — S.  D.— ,  60  N.  W.  747 127,  142,  149 

Job,  Moe.  v.;  1  N.  D.  140,  45  N.  W.  700 16,  90,  99,  110,  168 

John  A.  Tolman  Co.  v.  Bowerman  et  al,  5  S.  D.  197,  58  N.  W.   568 

: 123,    132,  140,  500 

John  A.  Tolman  Co.  v.  Savage  et  al,  5  S.  D.  496, 59  N.  W.   882 

'       37,  111,  139,  151,  248 

Johnson,  Barber  v.;  4  S.  D.  528.   57  N.  W.  225 318 

Johnson,  Benedict  v.;  — N.  D.— ,  57  N.  W.   66 65,  262,  266,  316 

Johnson  v.  Burnside,  3  S.  D.  230,  52  N.    W.   1057 128 

Johnson  v.  Dav  et  al,  2  N.  D.  295,  50  N.  W.  701 49,  157 

Johnson,  Fall  v.;  — S.  D.—  65  N.  W.  909 146,  147 

Johnson  v.  Gilmore,  — S.  D.— .  60  N.W.  1017 

67,  95,  117,  123,  130,  131,  138,  146,  471,  481,  487,  505 

Johnson  v.  Ins.  Co.  1  N.  D  167,  45  N.  W.  799 132 

Johnson  v.  Northern  Pac.  R.  Co.,  1  N.  D.  354,  48  N.  W.  227 

73.  97,  166, 179,  180, 181,  186,  187 

Johnson  etal,  Wav  v.;5S.  D.  237.  58  N.  W.  552 122,  489 

Johnson,  State  v.;'3  N.  D.  150,  54  N.  W.  547 405,   407,  408,  409,  410 

Jones  Lum.  &  Mer.  Co.  v.  Paris,  sheritf,  — S.  D.— ,  60  N.  W.  403  

69,  101,  135,  151,  153,  194.  234,  246,  481,  484,  485,  488,  489 

Jones,  McPherrin  v.;  — N.  D.— ,  65  N.  W.  685 23,  25,  152 

Jones,  Territory  v. :  6  Dak.  85.  50  N.  W.  528 379,  386,  402 

Jones,  Taylor  v  ;  3  N.  D.  235,  55  N.  W.  593 95 

Jordan  et  al,  Braithwaite  v.;  — N.  D.— ,  65  N.  W.  701 219 

Jordan  et  al  v.  Frank,  1  N.  D.  206,  46  N.  W.  171 . .  . -. 119 

Joslyn  V.  Smith  et  al.  2  N.  D.  53,  49  N.  W.  382 50,  114,  118,  137  - 

Judge  of   Dist.   Ct.  Stutsman  Co.,  State  ex  rel  N.  P.  R.  Co.  v.;  3  N.  D. 

43,  53  N.  W.  433 . .  192 

Judson  V,  Bulin,  6  Dak.  70,  50  N.  W.  484 318 

Karr  v.  Chi.  &  N.  W.  Rv.  Co.,  6  Dak.  14,  50  N.  W.  125 312,  315 

Keefe  et  al,  Gull  River  Lura.  Wo.  v.;  6  Dak.  160,  41  N.  W.  743 4 

Keehl  v.  Schaller,  6  Dak.  499,  50  N.  W.  195 232,  318,  320 

Kehoe  v.  Hansen  et  al,.— S.  D.  -,  65  N.  W.  1075. .  .172,  248,  455,  482,  489,  513 

Keith  V.  Haggert,  2  N.  D.  18,  48  N.  W.  432 16,  108,  127 

Keliher,  Holcomb  et  al  v.;  3  S.  D.  497,  54   N.  W.  535 67,  181,  470 

Kellogg,  Bank  v.;  4  S.  D.  312,  56  N.  W.  1071 267 

Kellogg,  Johnson  &  Co.  v.  Oilman  et  al,  3  N.  D.  538,  58  N.  W.  339 

38,  44,  81,  134 

Kelsey  v.  Ry.  Co.,  1  S.  D.  80.  45  N.  W.  207 97,  98,  134 

Kelsey  v.  Welch,  — S.  D.— ,  66  N.   W.  465 142,  196,  197,  198,  204 

Kennedy,  Chandler  v.;  — S.  D.— ,  65  N.  W.  439 52,  73,  137,  162,  182 

Kennedy  v.  P'alde,  4  Dak..  319,  29  N.  W  667 68,  480 

Kennedy,  Townsend  v.;  — S.  D.— ,  60  N.  W.  164 92 

Kent  v.  Dak.  P.  &  M.  Ins.  Co.,  2  S.  D.  300,  50  N.  W.  85 

54,  55,  61,  126,  136,  137,  138,  151,  489 

Kent,  State  v.;  4  N.  D.  577,  62  N.  W.  631 359,  361,  368,  388,  389 

Kerr.  State  v.;  3  N.  D.  523.  58  N.  W.  27 428 

Kimball  Co.  v.  Klrbv,  4  S.  D.  152.  55  N.W.  1110 173 

King  et  al,  State  ex  Vei  Gunderson  v.;  — S.  D.— ,  60  N.  W.  75.  .  .206,  215,  512 
King,  Territory  v.;  6  Dak.  131,  50  N,  W.  623 375,  380,  381,  400,  427 


XXiv  TERRITORIAL  AND  DAKOTA  CASES. 


Kingsland  etiil,  Security  Bank  of  Minnesota  v.;  —  N.  D.  — ,  65  N.  W. 

697 1 62 

Kirby,  City  of  Sioux  Falls  v.;  — S.  D.—  60  N.  W.  156 190.  207,  511 

Kirby.  Kimball  Co.  v.;  4  S.  D.  152,  55  N.  W.  1110 173 

Kirby  v.  Western  Union  Telefrraph  Co.,  4  S.  D.  105,  55  N.  W.  759 27,  81 

Kirby  v.  Western  Union  Tel.  Co.,  — S.  D.  -.,  65  N.  W.  482 491,  501,  605 

Kirby  v.  Western  Union  Tel.  Co.,  4  S.  D.  439,  57  N.  W.  199 500 

Kirby  v.  Western  Union  Tel.  Co.,  —  S.  D.  — ,  60  N.  W.  152 171 

Kirby  v.  Western  Union  Tel.  Co.,  4  S.  D.  463.  57  N.  W.  202 171 

Kirby  et  al,  Winton  v.;  -  S.  D.  — ,  60  N.  W.  409. 226,  228,  265,  508 

Kittl'eson  et  al,  Huron  Printing  &  Bindery  Co.  v.;  4  S.  D.  520,  57  N.  W. 

233  86 

Klaus,  Bil i  v.V  4  Dak."  328.'  30* N . "  W. "  17 1 .'  * .'  .* .' .' .' . .' .' ' ." .' .' ." ." .' ." .' .' ."  * . .' .' '..'.'. . '. '. 468 

Knapp,  Searls  v.;  5  S.  D.  325,  58  N.  W.  807 14 

Knight  et  al,  Bostwick  et  al  v.;  5  Dak.  305.  40  N.  W.  344 65,  :i43 

Knight  et  al.  State  v.;  3  S.  D.  509,  54  N.  W.  412 153,  432,  433,  434 

Knight  V.  Towles,  —  S.  D.  — ,  62  N.  W.  964 18,  100 

Knott,  Bowman  v.;  — S.  D.  — ,  66  N.  W.  457 .». 154 

Knott,  Conner,  v.;  —  S.  D.  — ,  66  N.  W.  461 ' 119 

Knott,  sheriff,  Vinton  v.;  —  S.  D.  — ,  63  N.  W.  783. 

154,  157,  202,  208,  265,  267 

Kohn  et  al,  Cranmer  v.;  —  S.  D.  -,  64  N.  W.  125 169 

Kramer  et  al.  Manufacturer's  Furnish'g  Co.  v.;  — S.  D.— ,  64 N.  W.  528.  .161 

Kronk  v.  Chi.  Mil.  &  St.  P.  R.  Co.,   3  S.  D.  93.  52  N.  W.  420 37 

Kvello  et  al  v.  Taylor,  —  S.  D.  — ,  63  N.  W.  889 17,  110,  155 

Lackey,  In  re— S.  D.— ,  62  N.  W.  134 191,  325 

La  Croix,  State  v.;  -  S.  D.— ,  66   N.  W.  944 268,  269,  365 

Ladd  et  al.  Nelson  v.;  4  S.  D  1,  54  N.  W.  809 261,  380 

Lancaster,  French  v.;  2  Dak.  276,  9  N.  W.  716  66,  205,  212,  469,  480 

Lane,  Noyes  v.;  2  S.  D.  55,  48  N.  W.  322 205,  483,  489,  490 

Laney  v.  Ingalls,  5  S.  D.  183,  58  N.  W.  572 14 

Lang,  Nat.  Ger.  Am.  Bank  v.;  2  N.  D.  66,  49  N.  W.  414 120,  121, 160 

Langess  v.  Pettigrew,  5  Dak.  45,  37  N.  W.  758 36 

Larson  v.  City  of  Grand  Forks,  3  Dak.  307,  19   N.  W.  414 85 

La  Rue  V.  Elevator  Co.,  3  S.  D.  637,  54  N.  W.  806 168 

Laughlin,  Bank  v.;  4  N.  D.  391,  61  N.  W.  473 18,  135,  469 

Laughlin  et  al,  Roberts,  Throp  &  Co.  v.;  4  N.  D.  167,  59  N.  W.  967.  .106,  163 

Lavin  v.  Bradley,  1  N.  D.  291,  47  N.  W.  384 51 

Lawrence  Co.,  Bailev  v.;  — S.   D.— ,  59  N.  W.  219 •.  173 

Lawrence  Co.  v.  Meade  Co.,  — S.  D.— ,  62  N*  W.  957   234,  241 

Lawrence  et  al,  Searles  v.;  — S.  D.— ,  65  N.  W.  34 146,  149,  200,  201 

Le  Claire  v.  Wells,  — S.  D.— ,  64  N.  W.  519  51,  246 

Lee,  Oil  Co.  v.;  1  S.  D.  531,  47  N.  W.  955 151,  201 

Lee,  Wright  v.;  4  S.  D.  237,  55  N.  W.  931 193 

Leeh man  State  v.;  2  S.  D.  171,  49  N.  W.  3 131 

Lemke,  Nat.  Bank  of  No.  Dak.  v.;  3  N   D.  154,  54  N.  W.  919 132 

Leonosio  v.  Bartilino,  —  S.  D.— ,  63  N,  W.  543 302 

Letcher  et  al,  Betts  v.;  IS.  D.  182,  46  N.  W.  193  55 

Lewis  V.  Fre.  E.  &  M.  V.  Ry.  Co.,  — S.  D.— ,  63  N.  W.  781 103,  135 

Lewis  et  al,  Jeansch  v.:  1  S.  D.  609.  48  N.  W.  128 93,  126.  134,  140,  472 

Lewis  et  al  v.  St.  P.  M.  &  M.  Ry.  Co.,  5  S.  D   148,. 58  N.  W.  580   479 

Liberty  Tp.  v.  Hutchinson  Co..  — S.  D.— .  64  N.  W.  1117 196 

Lighthouse  v.  R.  Co.,  3  S.  D.  518, 54  N.  W.  320 18,  100 

Lillestal  et  al,  Moen  v.;  — N.  D.  -.  65  N.  W.  694 203 

Linander  v.  Longstaff,  — S.  D.— ,  63  N.  W.  775 16 

Lincoln.  Minnesota  Thresher  Mfg.  Co.  v.;  4  N.  D.  410,  61  N.W.  145..18,  105,135 

Lindsay  v.  Pettigrew,  3  S.  D.  199,  52  N.  W.    873 79,  119 

Linton  v  Mpls,  N.  &  Elevator  Co.,  2  N.  D.  232,  50  N.  W.  357 Ill 


TERRITORIAL  AND  DAKOTA  CASES.  XXV 


Little,  Axion  Min.  Co.  v.;  — S.  D.— ,  61  N.  W.  441 13 

Little  V.  Little,  2  N.  D.  17.5,  49  N.  W.  736 61,  62,  90,  136,  460 

Lofland,  St.  John  v.;  — N.  D.— ,  64  N.  W.  930 129 

Loftusetal  v.  Farmers"  Shipping  Ass'n,  et  al,  — S.  D. — ,  65  N.  W.  1076 

142,  143,  165 

Longley  V.  Daly,  1  S.  D.  257,  46N.  W.  247 85 

Long-staff,  Linander  v.;  — S.  D.— ,  63  N.  W.   775 16 

Loranger  v.  Big  Missouri  Min.  Co,  — S.  D.— ,  61  N.  W.  686 2 

Lumber  Co.,  Foster  v  ;  5  S.  D.  57,  58  N.  W.  9 198 

Lyons  et  al  v.  Miller,  2  N.  D.  1,  48  N.  W.  514 .315,  320 

Machine  Co.,  Fahey  v.;  3  N.  D.  220,  55  N.  W.  580 17,  105.  133,  148 

Mann,  Bank  v.;  2  N.  D.  456,  51  N.  W.  946 116 

Manning,  Pierce  et  al  v.;  1  S.  D.  306,  47  N.  W.  295 227 

Manning,  Pierce  et  al  v.  2  S.  D.  517,  51  N.  W.  332 

. ; 61,  79,  111,  112,  139,  155,  179,  194,  246,  249,  250,  468,  470,  479 

Manufacturer's  Furnishing  Co.  v.   Kramer  et  al,  — S.  D. — ,  64  N.  W. 

528 161 

Marcks,  State  v.;  3  N.  D.  532,   58N.  W.  25 410 

Mares  v.  Northern  Pac.  R.  R.  Co.,  3  Dak.  336,  21  N.  W.  5 98,  101,  107 

Marku&on,  State  v.:  — N.  D.— ,  64  N.  W.   934 487,  358,  432,  434 

Mars  et  al  v.  Ora  Fino  Min.  Co.  et  al.,  — S.  D.— .  65  N.  W.  19 198 

Marshall,  Burdick  v.;  — S.  D.— ,  66  N.  W.  462 90 

Marshall  et  al  v.  Harney  Peak  Tin  Min.,  Mill.  &  Mfg.  Co.  et  al,  1  S.  D. 

350,  47  N.  W.  290,  (on  rehearing)  3  S.  D.  473,  54  N.  W.  272 

13,  148,  206,  454,  507 

Marshall,  Simpson  Brick-Press  Co.  v.;  5  S.  D.  528,  59  N.  W.  728 85 

Martin  v.  Hawthorne  et  al,  3  N.  D.  412,  57  N.  W.  87 114,  116 

Martin  V.  Minnekahta  State  Bank,  — S.  D,— ,  64  N.   W.  127  

48,  53,  95,  137,  153,  168 

Mathews,  Davis  et  al  v.;  — S. ■  D.— ,  66  N.  W.  456 ■ 160 

Matteson.  Richards  v.;  — S.  D.— ,  65  N.  W.  428 141,  262 

Matthiessen,  Star  "Wagon  Co.  v.;  3  Dab.  233,  14   N.  W.  107 17,  101 

Mattoon  v.  Fre.,  E.  &  M.  V.  Ry.  Co.,  — S.  D.— ,  60  N.  W.  740 

18,  99,  100,  101,  110,  179,  500 

Maxfield  et  al,  Caldwell  v.;  — S.  D.— ,  64  N.  W.  166 19 

Mayer,  Travelers'  Ins.  Co.  v.;  2  N.  D.  234,  50  N.  W.  706 208,  235,  243 

Mayor,  etc.,  Jackson  v.;  4  N.  D.  478,  61  N.  W.  1030 : 48 

Meade  Co.,  Lawrence  Co.  v.;  — S.  .D.— .  62  N.  W.  957 234,  241 

Mears,  Bingham  v.;  4  N.  D.  437,  61  N.  W.  808 20,  231 

Mellon,  Brundage  v.;  — N.  D.— ,  63  N.  W.  209 104,146,158 

Merchant's  Nat.  Bank  Devil's  Lake  et  al,  First  Nat.  Bk.  v.;  — N.  D.— , 

64  N.  W.  941 .68,  73,  138,  181,  213,  469,  472 

Merchants"  Nat.  Bank  v.  McKinney  et  al,  4  S.  D.  226,  55  N.  W.  929. . 

60,  67,  109,  136,  181,  212,  214,  245,459.  479,480,486,  501,509,513 

Merchants'  State  Bank  v.  Heidel  et  al,  4  N.  D.  427,  61  N.  W.  155.  .214,  464 

Metc-ilf  v.'Nelson,  — S.  D.— ,  65  N.  W.  911 '. 116,  117,  194,  196 

Meuer  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co.  3  S.  D.  322,  53  N.  W.  187 455 

Meyer  v.  School  Dist.  No.  31,  4  S.  D.  420.  57  N.  W.  68 89,  91,  125 

Mielenz  et  al,  Franz  Falk  Brew.  Co.  v. ;  5  Dak.  136,  37  N.  W.  728 

86   138,  468,  470,  472,  484 

Mikkelson,  Shelly  v.;  — N.  D.— ,  63  N.  W.  210 .' 19,  104,  105 

Mil.  Mechanic's  Mut.  Ins.  Co.,  Severson  v.;  3  S.  D.  412,  53  N.  W.  860.  .76 

Miller,  O'Brien  v.;  4  N.  D.  308,  60  N.  W.  841 138,  468,  469 

Miller,  Lyons  et  al  v.;  2  N.  D.  1,  48  N.  W.  514 315,  320 

Miller  et  al,   Nat.    Refining  Co.  v.;  1  S.  D.  548,  47  N.  W.  962  33,  36 

Miller  v.  Sunde,  1  N.  D.  1,  44  N.  W.  301 248,  252 

Miller  v.  Way  et  al,  3  S.  D.  627,  54  N.  W.  814 72,  194,  245 

Miner  v.  Francis  &  Southard,  3  N.  D.  549,  58  N.  W.  343 316,  320 

Minn.  &  N.  E.  Co.,  Daeley  et  al  v.;  4  N.  D.  369,  60 N.  W.  59.16,  133,  138,  469 


XXVI  TERRITORIAL  AND  DAKOTA  CASES. 


Minn.,  N.  &  Elevator  Co.,  Linton  v.,  2  N.  D.  232,  50  N.  W.  357 Ill 

Minn.,  St.  P.  &  S.  Ste.  M.  R.  Co.,Hodgin8  v.;  3  N.   D.  382,  66  N.  W.  189 

21,     99 

MinnehahaCo.,  Grigrsby  et  al.;  — S.  D.— ,  64  N.  W.  179 500 

Minnekahta  State  Bank,  Martin  v.;  — S.  D.— ,  64  N.  W.  127 

48.  53,  95,   137,  153,  163 

Minnesota  Thresher  Co.  v.  Lincoln,  4  N.  D.  410,  61  N.  W.  145. . .  .18,  105,  135 

Mitchell,  Myers  v.;  1  S.  D.  249,  46  N.  W.   245 6,  7,  315,  320 

Mitchell  etal,  St.  Croix  Lumber  Co.  v.;  4  S.  D.  487,  57  N.  W.  236 126 

Moe  V.  Job,  1  N.  D.  140,  45  N.  W.  700 16,  90,  99,  110,  168 

Moe  V.  Northern  Piic.  R.  Co.,  2  N.  D.  282,  50  N.  W.  715. .  .181,  185,  186,  187 

Moen  V.  Lillestal  et  al,  — N.  D.—,  65  N.  W.  694 203 

Moline  Plow  Co.  v.  Gilbert  et  al,  3  Dak.  239,  15  N.  W.   1 16,  36,  94 

Moore  v.  Booker  et  al,  4  N.  D.  543,  62  N.  W.  607 

50,  76,  77,  82,  94,  127,  137,  160,  214,  229,  232,  519 

Moore,  Sewing  Machine  Co.  v.;  2  Dak.  280,  8  N.  W    131. 252 

Morgan,  Branstetter  v.;  3  N.  D.  2i)0,  55  N.  W.  7.58 43,  122,  134 

Morris  etal,  McGillycuddy  v.,  — S.  D.— ,  65  N.  W.  14 187 

Morris  V.  McKnight  et  al,  1  N.  D.  266,  47  N.  W.  375 157 

Morrison  v.  Oium,  sheriff,  3  N.  D.  76,  54  N.  W.  288 162 

Mort.,  Bank  &  Investment  Co.,  Halvorson  v.;  — N.   D.— ,  54  N.  W.  1026 

88,  238 

Mort.,  Bank  &  Investment  Co.,  Hoffman  v.;  4  N.  D.  477,  61  N.  W.  1082 

79,  205,  239,  243,  453,  479 

Mort.,  Bank  &,  Investment  Co.,  McCann  v  ;  — N.  D.— ,  54  N.  W.  1026 

83  '^38 
Mort.,  Bank  &  investment  Co.,  Wiiiiamson  v.;  — N.  D.— ,  54  N.  W.  1026 

83  238 

Mortgage  Co.  v.  Bradley,  4  S.  D.'l58,"  55*  N.  W,  iios ......".'.".".  .65,'  248 

Mortgage  Co.  v.  Stevens,  3  N.  D.  265. 55  N.  W.  578 88 

Mouser  et  al  v.  Palmer,  2  S.  D.  466.  50  N.  W,  967. . .  .208,  235,  313,  315,  316 
Muggli,  treas.,  N.  W.  Loan  &  Bank.  Co.  v.;  — S.  D.— ,  64  N.  W.  1122....  199 

Mullen,  Demmon  v.;  — S.  D.— ,  62  N,  W.  380 .105 

Murdick  et  al.  Western  Pub.  House  v.;  4  S.  D.  207,  56  N.  W.  120 101 

Murphy  v.  Murphy,  1  S.  D.  316,  47  N.  W.  142 83 

Murray,  O'Neill  v.;  6  Dak.  107,  50  N.  W.  619 120,  127,  130 

Murry  v.  Burris  et  al,  6  Dak.  170,  42  N.  W.  25 305,  311 

Muscatine  Mort.  &  Trust  Co.,  Narregang  v.;  — S.  D  — ,  64  N.  W.  1129.  .199 

Myers  et  al.  Sweet  et  al  v.;  3  S.  D.  324,  53  N.  W.  187 73,  181 

Myers  v.  Mitchell.  1  S.  D.  249,  46  N.  W.  245 6,  7,  315,  320 

Myriok  v.  Bill,  3  Dak.  284,  17  N.  W.  268 141 

McCabe,  in  re,  —  N.  D.— ,  67  N.  W.  143 510 

McCann  v.  Mort.,  Bank  &  Investment  Co.,  — N.  D.— ,  54  N.  W  1026.  .83,  238 

McCaul  et  al.  Brown  v.,  — S.  D.— ,  60  N.  W.  151 39,  113,  133,  170,  472 

McCoUum,  sheriff,  Gotzian  &  Co.  v.;  — S.  D.— ,  65  N.  W.  1068 84 

McCormick  H.  M.  Co.  v.  Faulkner,  — S.  D.— ,  64  N.  W.  163.  .19,  104,  128, 161 

McCormick  H.  M.  Co.,  Feury  v.;  — S.   O.— ,  61  N.  W.  162 88,  172 

McCormack  v.  Phillios,  4  Dak.  506,  34  N.  W.  39 33,  34,  36,  468 

McCormick  H.  M.  Co",  v.  Snedigar  et  al,  3  S.  D.  62-5,  54  N.  W.  814 511 

McCormick  H.  M.  Co.  v.  Snedigar  et  al,  3  S.  D.  302,  53  N.  W.  83 511 

McCormick  H.  M.  Co.  v.  Taylor,  — N.  D.— ,  63  N.  W.  890 147 

McCoy,  Greeley  v.;  3  S.  D.  624,  54  N.  W.  659 2.52 

McGahey,  State  v.;  3  N.  D.  293,  65  N.  W.  753 122,  133,  428,  429 

McGillycuddy  v.  Morris  et  al,  — S.  D.— ,  65  N.  W.  14 187 

McGlynn  v.  Scott,  4  N.  D.  18,  58  N.  W.  460 106,  163 

McKee,  Thompson  v.;  6  Dak.  176,  37  N.  W.  367 120 

McKinneyetal,  Merchants'  Nat.  Bank  v.;  4  S.  D. 226,  65  N.  W.  929.... 

60,  67,  109,  186,  181,  212,  214,  245,  459,  479,  480,  486,  501,  509,  513 

McKittrick  v.  Pardee,  — S.  D.— ,  66  N.  W.  23 

.-T 115,  187,  206,  227,  487,  490,  508,  509,  513 


TERRITORIAL  AND   DAKOTA   CASES.  XXvii 


McKnight  et  al,  Morris,  v.;  IN.  D.  266.  47  N.  W.  375 157 

McLaughlin  v.  Bank,  6  Dak.  406.  43  N.  W.  715 95,  163 

McLean,  Galloway  v.;  2  Dak.  372,  9  N.  W.  98 68,  201,  480 

McMillan  et  al  v.  Aitchison,  3  N.  D.  183,  54  N.  W.  1030 113.  122,   134 

McPherrin  v.  Jones,  — N.  D.— ,  65  N.  W.  685 23,  25,  153 

Narregang  v.  Muscatine  Mort.  and  Trust  Co.,  — S.  D.— ,  64  N.  W.  1129.  .199 
Nat.  Bank  of  Dak.  et  al,  Connor  v.;  — S.  D.— ,  64  N.  W.  519. . .  .119,  164,  249 

Nat.  Bank  of  No.  Dak.  v.  Lerake,  3  N.  D.  154,  54  N.  W.  919 132 

Nat.  Cash  Reg'r  Co.  v.  Pfister  et  al,  5  S.  D.  143,  58  N.  W.  270 

112, 179,  468,  470 

Nat.  Ger.  Am.  Bank  v.  Lang,  2  N.  D.  66,  49  N.  W.  414 120,  121,  160 

Nat.  Refining  Co.  v.  Miller  et  al,  1  S.  D.  548,  47   N.W.  962 33,  36 

Nat.  Tube  Works  Co.  v.  City  of  Chamberlain,  5  Dak.  54,  37  N.  W.  761. . .  .48 

Nelson,  Metcalf  v.;  — S.  D.— ,  65  N.  W.  911 116, 117,  194,  196 

Nelson  v.  Ladd  et  al,  4  S.  D.  1,  54  N.  W.  809 261,  380 

New  England  Inv.  Co.,  Bode  v.;  1  N.  D.  121,  45  N.  W.  197 149,  150 

New  England  Inv.  Co.  et  al,  Farrington  v.;  1  N.  D.  102,  45  N.  W.  191.. 

144, 145 

New  Mexico  &  D.  M.  Co.,  Tolman  v.;  4  Dak.  4,  22  N.  W.  505 66,  90,  480 

Newson  et  al,  State  v.;  — S.  D.— ,  66  N.  W.  468 120 

Newton,  appellant,  in  re  Opening  Gold  St.  v.;  2  Dak.  149,  3  N.  W.  329. . 

64.  68,  139.  205,  458,  480 

Newton,  appellant,  in  re  Opening  Gold  St.  v.;  2  Dak.  39,  3  N.  W.  311,  8 

N.  W.  139 204,  211,  453,  507 

Nichells  v.  Nichells,  — N.  D.— ,  64  N.  W.  73 80 

Nichols  V.  Bruns,  5  Dak.  28,  37  N.  W.  753 152,  193 

Nissen,  Wood  v.;  2  N.  D.  26,  49  N.  W.  103 

64,  75,  180,  184,  188,  212,  245,  463,  471 

Nollman  et  al  v.  Evanson,  — N.  D.— ,  65  N.  W.  686 86,  197,  199,  213 

Noonan  et  al,  Caledonia  Gold  Min.  Co.  v.;  3  Dak.  189,  14  N.  W.  426 

: 49,  67,  93,  119,  131,  137,  247 

North,  Bank  v.;  2  S.  D.  480,  51  N.  W.  98 105,  129,  155,  505 

North  Star  Boot  &  Shoe  Co.  v.  Braithwaite,  4  Dak.  454,  34  N.  W.  68 42 

North,  Rudolph  v.;  6  Dak.  79,  50  N.  W.  487 33,  114,  135 

Northern  Pac.  El.  Co.,  Short  v.;  IN.  D.  159,  45  N.  W.  706 90,  129 

Northern  Pac.  R.  Co.,  Bennett  v.;  3  N.  D.  91,  54  N.  W.  314 97.  167 

Northern  Pac.  R.  Co-,  Bennett  v.;  2  N.  D.  112,  49  N.  W.  408 96,  129 

Northern  Pac.  R.  Co.,  Bennett  v.;  4  N.  D.  348,  61  N.  W.  18 21,  166 

Northern  Pac.  Co.,  Boss  v.;  2  N.  D.  128,  49  N.  W.  655 16,  25,  26,  64 

Northern  Pac.  R.  Co.,  Bush  et  al  v.;  3  Dak.  444,  22  N.  W.  508.  .180,  467,  468 

Northern  Pac.  R.  Co.,  Comaskey  v.:  3  N.  D.  276,  55  N.  W.  732 22,  171 

Northern  Pac.  R.  Co.,  Dunstan  v.;  2  N.  D.  46,  49  N.  W.  426 171 

Northern  Pac.  R.  Co.,  Ell  v.;  IN.  D.  336,  48  N.  W.  222 168,  169 

Northern  Pac.  R.  Co.,  Finney  v.;  3  Dak.  270,  16  N.  W.  500 86,  94 

Northern  Pac.  R.  Co.,  Fuller  v.;  2  N.  D.  220,  50  N.  W.  359 94 

Northern  Pac.  R.  Co.,  Hatch  et  al  v.;  — N.  D— ,  63  N.  W.  207 85 

Northern  Pac.  R.  Co.,  Herbert  v.;  3  Dak.  38,  13  N.  W.  349 10,  12,  145 

Northern  Pac.  R.  Co.,  Gram  v.;  IN.  D.  252,  46  N.  W.  972 

21,  22,  95,  96,  103,  128,  166,  167,  509 

Northern  Pac.  R.  Co.,  Johnson  v.;  1  N.  D.  3.54,  48  N.  W.  227 

73,  97,  166,  179,  180,  181,  186,  187 

Northern  Pac.  R.  Co.,  Mares  v.;  3  Dak.  336,  21  N.  W.  5 98,  101,  107 

Northern  Pac.  R.  Co.,  Moe  v.;  2  N.  D.  282,  50  N.  W.  715. .  .181,  185,  186,  187 
Northern  Pac.  R.  Co.,  Smith  v.;  3  N.  D.  17,  53  N.  W.  173.7,  21,   98,  141,  145 

Northern  Pac.  R.  Co.,  Smith  v.;  3  N.  D.  555.  58  N.  W.  345 130,  140 

Northern  Pac.  R.  Co.,  Williams  v.;  3  Dak.  166.  14  N.  W.  97.100.  101,  107, 165 

Northrup  v.  Cross,  sheriff,  2  N.  D.  433,  51  N.  W.  718 42,  43,  154,  172 

Norwegian  Plow  Co.  v.  Bellon,  4  S.  D.  384,  57  N.  W.  17 HI,  112,250 

N.  W.  Elevator  Co.,  First  Nat.  Bank  v.;  2  S.  D.  356,  50  N.  W.  356.  ..205,  478 


XXVlll  TERRITORIAL  AND  DAKOTA  CASES. 


N.  W.  Fuel  Co.  V.  Bi-uns,  1  N.  D.  137,  45  N.  W.  699 128 

N.  W.  Loan  &  Bankinj^  Co.  v.  Muggli,  treas.,  — S.  D.— ,<J4  N.  W.  1122.. 199 

Noyes  et  al  v.  Belding,  sheriff,  et  al,  5  S.  D.  603,  59  N.  W.  1069 

8,  80,  90,  123,  126,  145,  154,  155 

Noyes  et  al  v.  Brace  et  al,  — S.  D.— ,  65  N.  W.  1071 173 

Noyes  et  al  v.  Crandall  et  al,  — S.  D.— ,.61  N.  W.  806 107,  160 

Noyes  v.  Lane,  2  S.  D.  55,  48  N.  W.  322 205,  483,  489,  490 

O'Brien  v.  Miller,  4  N.  D.  308,  60  N.  W.  841 138,  468,  469 

Odell,  People  v.;  1  Dak.  189,  46  N.  W.  601 

375,  376,  379,  402,  404,  406,  410 

O'Hare,  Territory  v.;  1  N.  D.  30,  44  N.  W.  1003 

12,  354,  355,  357,  360,  362,  363,  364,  376,  378,  397 

Oil  Co.  V.  Lee,  1  S.  D.  531,  47  N.  W.  955 151,  201 

Oiutn,  sheriff,  Morrison  v.;  3  N.  D.  76,  54  N.  W.  288. 162 

Olson  V.  Huntimer  et  al  (on  rehearing),  —  S.  D.  — ,  66  N.  W.  313 170 

O'Neill  V.  Murray,  6  Dak.  107,  50  N.  W.  619 120,  127,  130 

Oro  Fine  Min.  Co.  et  al,  Mars  et  al  v.;  — S.  D.— ,  65  N.  W.  19 198 

Owen.  J.  P.,  Perrott  v.;  — S.  D.— ,  64  N.  W.  52b 151,  1,55,  156,  313,  315 

Ormsby  v.  Conrad  et  al,  4  S.  D.  599,  57  N.  W.  778. 83 

Ouverson  v.  City  of  Grafton,  — N.  D.— ,  65  N,  W.  676 

21,  22,  103,  117,  130,  167,  168 

Page  V.  Ry.  Co.,  — S.  D.— ,  64  N.  W.  137 93 

Palmer  et  al,  Fargo  et  al  v.;  4  Dak.  232,  27  N.  W.  463 

66,  205,  212,  458,  468,  480 

Palmer,  Mouser  et  al  v.;  2  S.  D.  466,  50  N.  W.  967. . .  .208,  235,  313,  315,  316 
Pardee,  McKittrick  v.;    — S.  D.— ,  65  N.  W.  23 

115,  187,  206,  227,  487,  490,  508,  509,  513 

Parker  v.  Bank,  3  N.  D.  37,  54  N.   W.  313 48,  51 

Parliman  v.  Young  et  al,  2  Dak.  175,  4  N.  W.  61 16,  17,  70,  159 

Parson,  Stewart  v.;  — N.  D.— ,  65  N.  W.  672 201 

Paulson  V.  Ward  et  al,  4  N.  D.  100,  58  N .   W.  792 247 

Pearson  v.  Post,  2  Dak.  220,  9  N.  W.  684  (686) 238 

Peart  v.  Chi.,  Mil.  &  St.  P.  Rv.  Co.,  5  S.  D.  337,  58  N.  W.  806. .29,  31,  81,  201 

Peck,  De  Lendrecie  v.;  1  N.  D.  422.  48  N.  W.  342 49,  64,  65,  246 

Peck  V.  Phillips,  4  Dak.  430,  34  N.  W.  65 205,  453,  454,  507 

Penderson,  J.  I.  Case  T.  M.  Co.  v.;  — S.  D.— ,  60  N.  W.  747. . . .  127,  142,  149 

People  V.  Briggs,  1  Dak.  289,  46  N.  W.  451 408 

People  V  Odell,  1  Dak.  189.  46  N.  W.  601 375,  376,  379,  402,  404,  406,  410 

People  V.  Wintermute,  1  Dak.  60  (102)  46  N.  W.  694 425 

Pennington,  St.  Croix  Lumber  Co.  v.;  2  Dak.  467,  11   N.  W.  497 

.  .24,  25,  64,  66,  68,  69,  73,  75,  174,  205,  213,  438,  439,  456,  458,  459,  471,  479 

Perie  et  al  v.  Berg  et  al,  — S.  D.— ,  64  N.  W.  1130 89,  144,  200 

Perrott  v.  Owen,  J.  P.,  — S.  D.— ,  64  N.  W.  5.i6 151,  155,  156,  313,  315 

Persons  et  al  v.  Simons,  sheriff.  1  N.  D.  243,  46  N.  W.  969 235,  242 

Peterson  v.  Siglinger,  3  S.  D.  255,  52  N.  W.  1060 80,  81 

Petrie,  sheriff,  Tootle  et  al  v.;  — S.  D.— ,  65  N.  W  43.  .83,  109,  132,  138,  162 
Pettigrew  et  al  v.  City  of  Sioux  Falls  et  al,  5  S.  D.  646,  60  N.  W.  27 . . . . 

82,  146,  151 

Pettigrew,  Langness  v.;  5  Dak.  45,  37  N.  W.  758 36 

Pettigrew,  Lindsay  v.;  3  S.  D.  199,  52  N.  W,  873 79,  119 

Pfister  et  al,  Nat.  Cash  Reg'r  Co.  v  ;  5  S.  D.  143,  58  N.  W.  270 

1 12,  179,  468,  470 

Phenix  Ins.  Co.,  Tierney  et  al  v.;  4  N.  D  565,  62  N.  W.  642 157 

Phillip  Best  Brew.  Co.  v.  Pillsbury  &  H.  E.  Co.,  5  Dak.  270,  16  N.  W. 

500 86,  138 

Phillips,  McCormack  v.;  4  Dak.  506,  34  N.  W.  39 33,  34,  36,  468 

Phillips,  Peck  v.;  4  Dak.  430,  34  N.  W.  65 205,  453,  454,  507 

Phillips  et  al,  Zeiraet  v.;  — S.  D.— ,  65  N.  W.  418 117 


TERRITORIAL   AND   DAKOTA   CASES.  XXix 


Pbelps,  State  v.;  5  S.  D.  480,  59  N.  W.  471 387,  388 

Piano  MVg  Co.,  Canham  v.;  3  N.  D"  229,  55  N.  W.  583 163 

Pickert  v.  Rugfc  et  al,  1  N.  U.  230,  46  N.  W.  446 69,  112,  133,  170,  179 

Pierce  et  al  v.JManning,  1  S.  D.  306,  47  N.  W.  295 227 

Pierce  et  al  v.  Manning,  2  S.  D.  517.  51  N.  W.  332 

61,  79,   111,  112,  139,  155,  179,  194,  246,  249,  250,  468,  470,  479 

Pierre  Waterworks  Co.  v.  Hughes  Co.,  5  Dak.  145,  37  N.  W.  733 192 

PilLsbury  &  H.  E.  Co.,  Phillip  Best  Brew.  Co.  v.;  5  Dak.  62,  37  N.  W. 

763 86, 138 

Pitts  Agl  Works  v.  Young,  —  S.  D.  — ,  62  N.  W.  432 43,  44,  110,  120 

Plunkettv.  Evans,  2  S.  D.,  434,  50  N.  W.  661 261 

Plymouth  Co.  Bank  v.  Oilman,  6  Dak.  304,  50  N.  W.  194 

101,  109,  126,  159,  168,  248 

Pollock  V.  Aikens,  Cir.  Judge,  4  S.  D.  374,  57  N.  W.  1 74 

Porteous,  Polev-Wadsworth  Implement  Co.  v.;  — S.  D. — ,  63  N.  W.  155, 

." , 67,   187,  199,  200,  214,  486,  487,  513 

Post,  Pearson  v.,  2  Dak.  220,  9  N.  W.  684  (686) 238 

Powell,  Fall  River  Co.  v.;  5  S.  D.  49,  58  N.  W.  7 90 

Prairie  School  Twp.  v.  Haseleu  et  al,  3  N.  D.  328,  55  N.  W.  938.  .111, 128, 165 

Pratt,  Territory  v.;  6  Dak,  483,   43  N.  W.  711 398 

Price  V.  Hubbard,  —  S.  D.  — ,  65  N.  W.  436 19,  103 

Purcell  V.  Booth,  6  Dak.  17,  -50  N.  W.  196 156,  314,  315 

Purcell  V.  St.  Paul  F.  &  M.  Ins.  Co..  —  N.  D.  — ,  64  N.  W.  943 

103,  117,  125,  131,  132,  149 

Purdin  v.  Archer,  4  S.  D.  54,  54  N.  W.  1043  142,  198 

Purinton,  Treas.,  Hardy  v.;  —  S.  D.  — ,  61  N.  W.  158 212 

Quebec  Bank  v.  Carroll  et  al,  1  S.  D.  1,  44  N.  W.  723 208,  224,  238 

Ranch  Co.  Willsie  v.;  — S   D.  — ,  63  N.  W.  546 145 

Randall  et  al  v.  Burk  Tp.  et  al,  4  S.  D.  337,  57  N.  W.  4 

68,  88,  89,  113,  119,  155,  212,  250,  478,  488 

Rapp  V.  Giddings,  4S.  D.  492,  57  N.  W.  237 17,  110,  133 

Ralhbun,  Edminster  v.;  3  S.  D.  129,  52  N.  W.  263 312,  320 

Ravmond  v.  Spicer,  6  Dak.  45,  50  N.  W.  399 67,  73 

Raymond,  Warder,  Bushnell  &  Glessner  Co.,  v.;  — S.  D.— ,  64  N.W.  525 

313,  316 

Reddington,  State  v.;  — S.  D.— ,  64  N.  W.  170.  .363,  365,  380,  415, 425, 445,  446 
Red  River  Val.  Nat.  Bk.  v.  Freeman,  1  N.  D.  196,  46  N.  W.  36.  .173,  236,  238 

Reeves  &  Co.  v.  Corrigan  et  al,  3  N.  D.  415,  57  N.  W.  80 17,  88,  133,  161 

Reister,  Sanders  v.;  1  Dak.  151,  46  N.  W.  680 98 

Rhoda  School  Tp.,  Coler  et  al  v.;  —  S.  D.  — ,  63  N.  W.  158.  .87,  164,  165,  174 

Richards  v.  Matteson  et  al,  —  S.  D.  — ,  65  N.  W.  428 141,  262 

Roberts,  Bank  v.;  2  N.  D.  195,  49  N.  W.  722 203 

Roberts  v.  Haggert,  4  Dak.  210,  29  N.    W.  6.50 500 

Roberts,  Thorp  &  Co.  v.  Laughlin  et  al,  4  N.  D.  167,  59  N.  W.  967.  .106,  163 

Rodway,  Siate  v.;  1  S.  D.  575,  47  N.  W.  1061 271 

Roll  et  al,  Granger  v.;  —  S.  D.  — ,  62  N.  W.  970. . .  .94,  1-52,  209,  240,  241,  512 
Rose.  Dist.  Judge,  State  ex  rel  Enderlin  State  Bk.  v.;  4  N.  D.  319,  58  N. 

W.  514 192,  193,  224,  236,  238,  252 

Ross  v.  Waite  et  al,  2  S.  D.  638,  51  N.  W.  866 65,  77,  239 

Rossteuscher,  Yankton  Co.  v.;    1  Dak.  120,  46  N.  W.  575 140,  376 

Rosum  V.  Hodges,  1  S.  D.  313,  47  N.  W.  140 141 

Rudolph   V.  Herman,  2  S.  D.  399,  50  N.  W.  833 226,  312,  317,  318 

Rudolph  V.  Herman,  4  S.  D.  430,  57  N.  W.  65. .    317,  319 

Rudolph  V.  Herman,.  4  S  D.  203.  56  N.  W.  122 8,  82,  314,  317,  319 

Rudolph  V,  North,  6  Dak.  79,  50  N.  W.  487 33,  114,  135 

Rugg  et  al,  Pickert  v.;  1  N.  D.  230,  46    N.  W.  446 69,  112,  133,  170,  179 

Russell  &  Co.   V.  Amund&on,  4  N.  D.  112,  69  N.  W.  477 21 

Russell  et  al,  Wm.  Deering  &  Co.  v.;  — S.  D.  — ,  65  N.  W.  691 

20,  128,  129, 161,  165 


XXX  TERRITORIAL  AND   DAKOTA  CASES. 


Ryan  v.  Davenport,  5  S.  D.  203,  58  N.  W.  568 233 

Sanders  v.  Reister,  1  Dak.  151,  46  N.  W.  680 98 

Sandmeyer  v.  Ins.  Co.,  2  S.  D.  346,  50  N.  W.  353 152 

Sanford  v.  Bell  et  al,  2  N.  D.  6,  48  N.  W.  434  (436) 

13,  18.  102,  142,  148,  152,  188,  193,  246 

Sanford  v.  Duluth  &  Dak.  El.  Co.;  2  N.  D.  6,  48  N.  W.  434 

13,  18,  102,  142,  148,  162,  188,  193,246 

Saunders  v.  Chi.  &  N.  W.  Ry.  Co.,  — S.  D.— ,  60  N   W.  148 99 

Savage  et  al,  John  A.  Tolman  Co,  v.;  5  S.  D.  496,  69  N.  W.  882 

37,  111,  139,  151,  248 

Seaman  v.  Galligan  et  al,  — S.  D.— '  66  N.  W.  458 141,  145,  153 

Schaetzel  v.  City  of  Huron,  — S.  D.— ,  60  N.  W.  741 8,  13,  241,  351,  354 

Schaller,  Keehl  v.;  6  Dak.  499,  50  N.  W.  195 232,  318,  320 

Schamber  et  al,  Bauder  v.;  — S.  D.— ,  63  N.  W.  227 109,  134,  182,  672 

Scheffer  et  al  v.  Corson  et  al,  5  S.  D.  2:«,  58  N.  W.  555 84 

Schmitz  V.  Heger,  — N.  D.— ,  64  N.  W.  943 138,  139,  181,  469 

Scholtes  et  al,  Dalbkermeyer  v.;  3  S.  D.  183,  52  N.  W.  871 485,  488 

Scholtes  et  al,  Dalbkermeyer  v.;  3  S.  D.  124,  52  N.  W.  261 511 

Schone  et  al.  Valley  Land  &  Irrigation  Co,  v.;  2  S.  D.  344,  50  N.  W.  356 

205,  453,  478,  483,  488,  490,  507 

School  Dist.  No.  63,  Capital  Bank  of  St.  Paul  v.;   IN.  D.  479,  48  N.  W. 

363 102 

School  Dist.  No.  63,  Farmers,  etc.,  Bank  v.;  6  Dak.  255,  42  N.  W.  767. .  102 

School  Dist.  No.  70,  Flagg  v.;  — N.  D.— ,  65  N.  W.  674 164 

School  Dist.  No.  39,  Gull  River  Lum.  Co.  v.;  1  N.  D.  500,  48  N.  W.  427 

47,  49,  52 

School  Dist.  No.  116  of  Minnehaha  Co.  v.  Ger,  Ins.  Co.;  — S.  D.— ,  64  N. 

W.  627 1 04 

School  Dist.  No.  31   Minnehaha  Co.,  Meyer  v.;  4  S.  D.  420,  57  N.  W.  68 

89,91,  125 

Scott,  Bailey  v.;  1  S.  D.  337,  47.  N.  W.  286 189,  212,  213,  237 

Scott,  McGlynn  v.;  4  N.  D.  18,  58  N.  W.  460 106,  163 

Scott,  State  v.;  — S.  D.— ,  65  N.  W.  31 263,  264 

Seabury-Calkins  Consol.  Min.  Co.,  Calkins  v.;  5  S.  D.  299,  58  N.  W.  797 

68,  146,  468,  480 

Searles  v.  Christensen,  — S.  D— ,  60  N.  W.  29 83, 151,  233,  234,  281,  488 

Searles  v.  Lawrence  et  al,  — S.  D.— ,  65  N.  W.  34 146,  149,  200,  201 

Searls  v.  Knapp,  6  S.  D.  32.5,  58  N.  W.  807 14 

Security  Bank  of  Minnesota  v.  Kingsland  et  al,  — N.  D.— ,  65  N.  W.  697, 162 

Serenson,  State  v.;  — S.  D.— ,  64  N.  W.  130 425,  429 

Severson  v.  Mil.  Mechanic's  Mut.  Ins.  Co.,  3  S.  D.  412,  53  N.  W.  860 76 

Sewing  Machine  Co.  v.  Moore,  2  Dak.  280,  8  N.  W.  131 252 

Shearer,  Territory  ex  rel  Eiseman  v.;  2  Dak.  332,  8  N.  W.  136 6 

Shea,  Tyler  v.;    4  N.  D.  377,  61  N.  W.  469 229,  247,  251 

Sheldon  et  al  v.  Chi.,  Mil.  &  St.  P.  R.  Co.,  — S.  D.— ,  62  N.  W.  955 18 

Shelly  V.  Mikkelson,  — N.  D.— ,  63  N.  W.  210 19, 104,  105 

Sherin,  Banbury  v.;  4  S.  D.  88,  55  N.  W.  723 68,  480 

Sherin,  Hermann  v.;  — S.  D.— ,  60  N.  W.  145 

31,  32,  37,  42,  89,  101,  160,  202 

Sherman,  Wright  v.;  3  S.  D.  367,  63  N.  W.  42.5 499 

Shickle-Harrison  &  Howard  Iron  Co.  v.  City  of  Rapid  City  et  al,  — S.  D. 

gg  >f .  ■\^.  499 506 

Shoemaker  et  al,  Bern  et  al  v.;  —  S.  D.— ,  64  N.  W.  544 216,  217 

Short  V.  Northern  Pac.  El.  Co.;  1  N.  D.  169,  46  N.  W.  706 90,  129 

Sifton  V.  Sifton,  — N.  D.— ,  65  N.  W.  670 196 

Siglinger,  Peterson  v.;  3   S.  D.  265,  62  N.    W.  1060 80,  81 

Simons,  sheriff.  Persons  et  al  v.;  1  N.  D.  243,  46  N.  W.  969 235,  242 

Simpson  Brick-Press  Co.  v.  Marshall,  5  S.  D.  528,  59  N.  W.  728 85 

Sioux  Banking  Co,  v.  Kendall  et  al,  — S.  D.— ,  62  N.  W,  377 69,  105,  135 


TERRiTORiAL   AND   DAKOTA   CASES.  XXXi 


Sioux  Falls  Brew.  Co.  et  al,  State  v.;  2  S.  D.  363,  50  N.  W.  629 

211,  456,  507 

Sioux  Palls  Brew.  Co.  et  al,  State  v.;  5  S.  D.  360,  58  N.  W.  928 501 

Sioux  Falls  Brew.  Co.  etal.  State  v.:  5  S.  D.  39,  58  N.  W.  1 107,  108 

Sioux  Falls  Water  Co.,  Carlson  v.   (on   rehearing);  — S.  D. — ,  65  N.  W. 

419 21,  100 

Slatery  v.  Donnelly,  1  N.  D.  264.  47  N.  W.  375 102 

Slavens  et  al,  Gleckler  et  al  v.;  5  S.  D.  304,  59  N.  W.  323. . .  .93,  122,  130,  131 

Smith,  Adams  v.;  6  Dak.  94,  50  N.  W.  720 194,  20<),  252 

Smith  etal  v.  Commercial  Nat.  Banket  al,  — S.  D.— ,  64  N.  W.  529.  .65,  248 

Smith  et  al.  Com.  Nat.  Bank  v.;  IS.  D.  28,  44  N.  W.  1024 83,  190 

Smith,  sheriff,  Conrad  v.;  2  N.  D.  408,51  N.  W.  720 134 

Smith  et  al.  First  Nat.  B.  of  Pierre  v.;  — S.  D.— ,  65  N.  W.  437 

-      22,  87,  125,  147 

Smith  et  al.  Golden  Terra  Min.  Co.  v.;  2  Dak.  374.  11  N.  W.  98.  ..75,  84,  212 
Smith  et  al,  Golden  Terra  Min.  Co.  v.;  2  Dak.  377,  U  N.  W.  97 

49,  66,  111,  137,  174,  205,  480 

Smith  et  al,  Joslyn  v.;  2  N.  D.  53,  49  N.  W.  382 50,  114,  118,  137 

Smith  V.  Chi.,  Mil.  &  St.  P.  R.Co.;  4  S.  D.  71,  55  N.  W.  717 

21   37    98    117    1S4 
Smitliv.'  Chi..'Mii.*  '&'st."p."R.'Co.,*  4  S.  0.30,'  54  N."  W.  93l'. . .! . .  .'.481,'  508 

Smith  V.  N.  P.  R.  Co.,  3  N.  D.  555,  58  N.  W.  345 130,  140 

Smith  V.  N.  P.  R.  Co.,  3  N.  D.  17,  53  N.  W.  173 7,  21,  98,  141,  145 

Smith  etal.  Southard  v.;  — S.  D.— ,  66  N.  W.  316 149 

Sneuig-ar  et  al,  McCormick  H.  M.  Co.  v.;  3  S.  D.  625,  54  N.  W.  814 511 

Snedigar  et  al,  McCormick  H.  M.  Co.  v.;  3  S.  D.  302,  53  N.  W.  83 511 

Southard  V.  Smith  et  al, —S.    D.— ,  66  N.  W.  316 149 

South  Bend  Toy  Mfg.  Co,  v.  Dak.  F.  &  M.  Ins.  Co.,  2  S.  D.  17,  48  N.  W. 

310 .' 103 

Spaulding,  Garr,  Scott  &  Co.  v.;  2  N.  D.  414,  51  K.  W.  867 

47,  49,  51,  80,  211,  237,  459,  460 

Spaulding  et  al,  in  re,  — S.  D— ,  66  N.  W.  462 90 

Spicer,  Rjiymond  v.;  6  Dak.  4-5,  50  N.  W.  399 67,  73 

Spink  Co.  et  al,  Billinghurst  v.;  5  S.  D.  84,  58  N.  W.  272 455,  490,  507 

Sprague  v.  Fre.  E.  &  M.  V.  R.  Co.,  6  Dak   86,  50  N.  W.  617 96,  172 

St.  Croix  Lum.  Co.  v.  Mitchell  et  al,  4  S.  D.  487,  -57  N.  W.  236 126 

St.  Croix  Lum.  Co.  v.  Pennington,  2  Dak.  467,  11  N.  W.  497 

24,  25,  64,  66,  68,   69,  73,  75,    114,   205,  212,  438,  439,a456,  458,  459, 

471,  479. 

St.  ,Tohn  V.  Lofland,  — N.  D.— ,  64  N.  W.  930 129 

St.  Paul  F.  &  M.  Ins.  Co.,  Enos  etal  v.;  4S.  D.  639,  57  N.  W.  919.36, 130,  131 
St.  Paul  F.  &.  M.  Ins.  Co.,  Purcell  v.;  — N.  D.— ,  64  N.  W.  943 

103,  117,  125,  131,  132,  149 

St.  P.,  M.  &  M.  Ry.  Co.,  Lewis  et  al  v.;  5  S.  D.  148,  58  N.  W.  580 449 

Stamm  v.  Coates,  4  Dak.  69,  22  N.  W.  593 15,  27,  80,  132 

Stanley  Co.  et  al,  Dupree  v.;  — S.  D.— ,  65  N.  W.  426 195 

Staples  V.  Huron  Nat.  Bank,  -  S.  D.— ,  66  N.  W.  314 164 

Stai^  Wagon  Co.  v.  Matthieson,  3  Dak.  233,  14    N.  W.  107 17,  101 

State  V.  Bauer,  1  N.  D.  273,  47  N.  W.  378 377 

State  V.  Boughner  (on  rehearing),  — S.   D.— ,  63  N.  W.  542 380 

State  V.  Boughner,  5  S.  D.  461,  59  N.  W.  736 377,  381,  382 

State  V.  Brennan,  2  S.  D.  384.  50  N.  W.  625 132,  422 

State  V.  Bunker,  — S.  D  — ,  65  N.  W.  33 23,  261,  264,  380 

State  V.  Burchard,  4  S.  D.  548,  57  N.  W.  491 374 

Slate  V.  Chapman  et  al,  1  S.  D.  414,  47   N.  W.  411 

115,  271,  363,  366,  367,  416,  418 

State  v.-  Church,  — S.  D.  — ,  60  N.  W.  143. . .  .108,  369,  375,  377,  380,  382,  399 

State  V.  Church,  —  S.  D.  — ,  64  N.  W.  152. 400,  403,  404,  428 

State  V.  Hafsoos,  1  S.  D.  383,  47  N.  W.  400 269 


XXXU  TERRITORIAL  AND   DAKOTA  CASES. 


State  V.  Hasledahl,  2  N.  D.  521,  52  N.  W.  315 312,  364,  385,  397,  403,  404 

State  V.  Hasledahl,  3  N.  D.  36,  53  N.  W.  430 352 

State  V.  Hicks  et  al,  — S.  D.— ,  60  N.  W.  66 388 

State  V.  Isaacson,  —  S.  D.  —  65  N.  W.  430 377 

State  V.  Johnson,  3  N.  D.  150,  54  N.  W.  547 405,407,408,409,410 

State  V.  Kent,  4  N.  D.  577,  62  N.  W.  631 359,  361,  368,  388,  389 

State  V.  Kerr,  3  N.  D.  52^,  58  N.  W.  27 428 

State  V.  Knight  et  al,  3  S.  D.  509,  54  N.  W.  412 153,  432.  433,  434 

State  V.  LaCroix,  — S.  D.— ,  66  N.  W.  944 268,  269,  365 

State  V.  Leehraan,  2S.  D.  171,  49  N.  W.  3 131 

State  V.  McGahey,  3  N.  D.  2t)3,  55  N.  W.  753 122,  133,  428,  429 

State  V.  Marcks,  3  N.  D.  532,  58  N.  W.  25 410 

State  V.  Markuson,  —  N.  D.  — ,  64  N.  W.  934 4,  87,  358,  432,  434 

State  V.  Newson  et  al,  —  S.  D.  — ,  66  N.  W.  468 120 

State  V.  Phelps,  5  S.  D.  480,  59  N.  W.  471 387,  388 

State  V.  Reddington,  — S.  D.— ,  64  N.  W.  170 

363,  365,  380,  415,  425,  445,  446 

State  V.  Rodway,  1  S.  D.  575,  47  N.  W.  1061 271 

State  V.  Scott,  — S.  D.— ,  66  N.  W.  31 263,  264 

State  V.  Serensen,  —  S.  D.— ,  64  N.  W.  130 425,  429 

State  V.  Sioux  Falls  Brew.  Co.  et  al,  5  S.  D.  39,  58  N.  W.  1 107,  108 

State  V.  Sioux  Falls  Brew.  Co.  et  al,  2  S.  D.  363,  50  N.  W.  629 

21 1,   455,  507 

State  V.  Sioux  Falls  Brew.  Co.  et  al,  5  S.  D.  360,  58  N.  W.  928 501 

State  V.  Sweetland,  3  S.  D.  503,  54  N.  W.  415 434 

State  V.  Taylor,  — S.  D.  — ,  64  N.  W.  548 446 

State  V.  Van  Nice,  —  S.  D.— ,  63  N.  W.  537 351,  353,  354 

State  V.  Wilson,  4  S.  D.  535,  57  N.  W.  338  378 

State  ex  rel  Moore  v.  Archibald,  — N.  D.— ,  66  N.  W.   234 190 

State  ex  rel  Mears  v.  Barnes,  sheriff,  —  N.  D.— ,  65  N.  W.  688.  .191,  223,  279 
State  ex  rel  Dollard  v.  Board  Co.  Com'rs  Hughes  Co.  et  al,  1  S.  D.  292, 

46  N.  W.  1127 192 

State  ex  rel  Edwards  v.  Davis,  2  N.  D.  461,  51  N.  W.  942 236,  237,  432 

State  ex  rel  Bartlett  v.  Fraser  et  al,  1  N.  D.  425,   48  N.  W.  343 115 

State  ex  rel  Gunderson  v.  King  et  al,  —  S.  D.  — ,  60  N.  W.  75. . .  .206, 215, 512 
State  ex  rel  N.  P.  R.  Co.  v.  Judge  of  Dist.  Ct.,  Stutsman  Co.,  3  N.  D.  43, 

53  N.  W.   433 192 

State  ex  rel  Enderlin  St.  Bk.  v.  Rose,   Dist.  Judge,  4  N.  D.  319,  58  N. 

W.  514 192,  193,  224,  236,  238,  2.52 

Stevens  v.  Wm.  Deering  &  Co.,  —  S.  D.  — ,  60  N.  W.  739 131 

Stevens,. Mort.  Co.  v.;  3  N.  D.  265,  55  N.  W.  578 88 

Stewart  v.  Gilruth,  — S.  D.  — ,  65  N.  W.  1065 20,  61 

Stewart  v.  Parson,  — N.  D.  — ,  65  N.  W.  672 201 

Stone  V.  Chi.  Mil.  &  St.  P.  R.  Co.,  —  S.  D.  — ,  65  N.  W.  29 50,  90 

Stone,  Territory  v.;  2  Dak.  155,  4  N.  W.  697 

93,  379,  382,  395,  418,  419,  420,  422,  423,  439,  467,  468,  482 

Sundback,  Ayres,  Weatherwax  &  Reid  Co.  v.;  5  S.  D.  31,  58  N.  W.  4. . . 

17,  139,  261 

Sundback,  Ayres,  Weatherwax  &  Reid  Co.  v.;  5  S.  D.  362,  58  N.  W.  929, 

486,  501 

Sundback  et  al,  Griswold  v.  (on  rehearing);  4  S.  D.  441,  60  N.  W,  1068, 

38,  42,  102,  144,  154 

Sundback,  sheriff,  Jewett  et  al  v.;  5  S.  D.  Ill,  58  N.  W.  20 

17,  106,  121,  126,  127,  153,  173 

Sunde,  Miller  v.;  1  N.  D.  1,  44  N.  W.  301 248,  252 

Sweet  v.  Chi.,  Mil.  &  St.  P.  R.  Co.,  4  N.  D.  536,  62  N.  W.  605 100 

Sweei  et  al  v.  Myers  et  al,  3  S.  D.  324,  53  N.  W.  187 •.  .73,  181 

Sweetland,  State  v.;  3  S.  D.  503,  54  N.  W.  415 434 

Sykes  v.  Hannawalt,  — N.  D.— ,  65  N.  W.  682 116 


TERRITORIAL  AND   DAKOTA   CASES.  XXxili 


Taylor  v.  Jones,  3  N.  D.  235,  55  N.  W.  593 95 

Taylor,  Kvello  et  al  v.;  — N.  D.— ,  63  N.  W.  889 17,  110,  155 

Taylor,  McCormick  H.  M.  Co.  v.;  — N.  D.— ,  63  N.  W.  890 147 

Tavlor,  State  v.;  —  S.  D.— ,  64  N.  W.  548 446 

Taylor  v.  Taylor,  5  N.  D.— ,  63  N.  W.  893 213,  253,  482 

Tavlor,  Territory  v.;  1  Dak.  451  (appendix) 381,  403,  427 

Tei.  Co.,  Kirby  v.;  4  S.  D.  10.5,  57  N.  W.  202 171 

Territory  v.  Christensen,  4  Dak.  410,  31  N.  W.  847 375,  380 

Territory  v.  Conrad,  1  Dak.  348,  46  N.  W.  605 409 

Territory  v.  Couk,  2  Dak.  188,  47  N.  W.  395 386 

Territory  v.  Egan.  3  Dak.  125,  13  N.  W.  568 271,  368 

Territory  v.  Gay,  2  Dak.' 125,  2  N.  W.  477 376,  381,  382,  399,  405,  427 

Territory  v.  Godfrey,  6  Dak.  46,  50  N.  W.  481 377 

Territory  v.  Jones,  6  Dak.  85,  50  N.  W.  528 379,  386,  402 

Territory  v.  King,  6  Djik.  131,  50  N.  W.  623 375.  380,  381,  400,  427 

Territory  v.  Q'Hare,  1  N.  D.  30,  44  N.  W.  1003 ' 

12,  354,  355,  357,  360,  362,  363,  364,  376,  378,  397 

Territory  v.  Pratt.  6  Dak.  483,  43  N.  W.  711 398 

Territory  y.  Stone,  2  Dak.  155,  4  N.  D.  697 

93,  379,  382,  395,  418,  419,  420,  422,  423, 439,  467,  468,  482 

Territory  v.  Taylor,  1  Dak.  451  (appendix) 381,  403,  427 

Territory  ex  rel  Eiseman  y.  Shearer,  2  Dak.  332,  8  N.  W.  135 6 

Territory  ex  rel  Wallace  v.  Woodbury  et  al.  1  N.  D.  85,  44  N.  W.  1077.  .192 

Thomas," Bell  v.;  — S.  D.— ,  63  N.  W.  907 80,  211,  212,  478,  487 

Thompson  &  Sons  Mfg.  Co.  y.  Guenthner  et  al,  5  S.  D.  504,  59  N.  W.  729 

237   510 
Thompson  V.'  'McKeej  5  Dak.'  176,  37  n!  W.  367.  ..".*."..'..  ..*.'."..'..'.'.'.'.. . .  .'.120 

Tierney  et  al  v.  Phenix  Ins.  Co.,  4  N.  D,  565,  62  N.  W.  642 157 

Todd  V.  Todd,  — S.  D.— ,  63  N.  W.  777 8 

Tolerton  &  Stetson  Co.  y.  Casperson,  — S.  D.— ,  63  N.  W.  908 

206,  214,  226,  232,  483,  486,  508 

Tolman  y.  New  Mexico  &  D.  M.  Co.,  4  Dak.  4,  22  N.  W.  505 66,  90,  480 

Tonkin,  Bedow  y.;  5  S.  D.  432,  59  N.  W.  222 93 

Tootle  et  al  y.  Petrie,  sheriff,  — S,  D.— ,  65  N.  W.  43 

83    93    109    132    138    162 
Towie  V.  Bradiey,  2  S.  D.  472,  50  isf.'w.  1057. ...... . !  .226,  227,  228,  314,  318 

Towles,  Knight  y.;  —  S.  D.  —  62  N.  W.  964 18,  100 

Town  of  Dell  Rapids  y.  Trying,  —  S.  D.  — ,  64  N.  W.  149 173 

1  ownsend  y.  Kennedy,  — S.  D.— ,  60  N.  W.  164 92 

Tp.  of  Red  Rock,  Hanson  y.;  — S.  D.— ,  63  N.  W.  156.  .87,  123,  124,  132,  158 
Trayelers's  Ins.  Co.  y.  California  Ins.  Co.,  1  N.  D.  151,  50  N.  W.  706. . . 

208  209   220   242   243   318 
Travelers' 'iris.*  Co.  v.  Mayer^  2  N.'  D.'  '284,  50  'n.'  W.  706. . .'. . . .  .'208,'235,'  243 

Tressel,  Feldenheimer  v.;  6  Dak.  94,  50  N.  W.  720 250 

Triplett,  George  v.;  — N.  D.— ,  63  N.  W.  891 124 

Trumbower,  Peldman  v.;  — S.  D.— ,  64  N.  W.  189 48,  87 

Tschetter,  Weber  v.;  1  S.  D.  205,  46  N.  W.  201 197,  237 

Turner  v.  Coughran,  — S.  D.— ,  66  N.  W.  810 201 

Tyler  v.  Shea,  4  N.  D.  377,  61  N.  W.  469 229,  247,  251 

Uhe  y.  Chi.  Mil.  &  St.  P.  R.  Co.,  .3  S.  D.  563,  54  N.  W.  601 26,  124,  229 

Uhe  v.  Chi.  Mil.  &  St.  P.  R.  Co.,   4  S.  D.  506,  57  N.  W.  484 

22,  25,  63,  64,  150 

Uhlig  V.  Garrison  et  al,  2  Dak.  99,  2  N.  W.  258 22 

Ulrick  V.  Dak.  Loan  &  Trust  Co.,  2  S.  D.  285,  49  N.  W.  1054  (on  rehear- 
ing)   83 

Upton  y.  Hugos  et  al,  —  S.  D.  — ,  64  N.  W.  523 .37,  113,  115 

U.  S.  ex  rel  Scott  v.  Burdick,  mai  shal,  1  Dak.  137,  46  N.  W.  671 191 

U.  S.  v.  Crow  Dog,  3  Dak.  106,  14  N.  W.  437 386 

U.  S.  v.  Wood,  4  Dak.  455,  33  N.  W.  59 387 


XXxiv  TERRITORIAL  AND  DAKOTA  CASES 


Valley  Land  &  Irrigation  Ca  v.  Sohone  et  al,  2  S.  D.  344,  50  N.  W.  ;i56 

2t)o,  453,  478.  483,  488,  4iK),  .507 

Valliar  v.  Brakke  (on  rehearing),  — S.  D.— ,  64  N.  W.  11  U» 155 

Van  Antwerp  v.  Dell  Rapids  Tp.,  3  S.  D.  305,  53   N.  W.  82  (on  reheaiv         \ 

inff) 173 

Van  Brunt  &  Davis  Co.  v.  Harrigan  et  al;  — S.  D.— ,  65  N.  W.  421. . .  .20. 118 

Van  Eps,  Holt  v.;  1  Dtik.  198,  46  N.  W.  689 13,  51 

Van  Nice,  State  v.;  — S.  D.— .  63  N.  W.  537 351,  353,  354 

Vannier,  Farris  v.;  6  Dak.  186.  42  N.  W.  31 195 

Vermillion  Artesian  Well,  E.,  L.,  M.,  I.   &  L  Co.  v.  City  of  Vermillion, 

— S.  D.— ,  61  N.  W.  802 86,  123,  130 

Vert  V.  Vert,  3  S.  D.  619,  54  N.  W.  655 235,  237,  510 

Wait,  Ellis  v.;  4  S.  D.  31,  M  N.  W.  925  131,  471,  487,  490,  513 

Wait,  Ellis  v.;  4  S.  D.  504,  57  N.  W.  23^ 504 

Waite  et  al,  Ross  v.;  2  S.  D.  638,  51  N.  W.  866 65,  77,  239 

Waite,  Williams  v.;  2  S.  D.  210.  49  N.  W.  209 194.  2(W 

Waldron  v.  Evans,  1  Dak.  10,  46  N.  W.  607 112,  152,  246,  249,  513 

Wallace  et  al,  Clark  v.;  1  N.  D.  404,  48  N.  W.  339 162,  163 

Walsh,  Harris  Mfg.  Co.  v.;  2  Dak.  41.  3  N.  W.  307 239 

Walter  A.  Wood  Har.  Co.  v.  Heidel  et  al,  4  N.  D  427,  61  N.  W.  155. . . . 

214,  464 

Wambole  v.  Foote,  2  Dak.  1,  2  N.  W.  239 239,  240,  247 

Ward  et  al,  Paulson  v.;  4  N.  D.  100,  58  N.  W.  792 247 

Warder,  Bushnell  &  Glessner  Co.  v.  Ingli,  1  S.  D.  155,  46  N.  W.  181. .. . 

101,  119.  122,  134 

Warder,  Bushnell  &  Glessner  Co.  v.  Raymond,  — S.  D.— ,  64   N.  W.  525 

313,  316 

Watertown  F.  Ins.  Co.,  Drew  v.;  —  S.  D.  — ,  61  N.  W.  34 81,  111,  133 

Watertown  Hotel  Co.,  Esshon  v.;  — S.  D.— ,  63  N.  W.  229. .  .92,  127,  147,  470 

Watkins,  Harris  v.;  5  Dak.  374,  40  N.  W.  5;^ 321 

Way  v.  Johnson  et  al.  5  S.  D.  237,  58  N.  W.  552 122,  489 

Way  et  al.  Miller  v.;  3  S.  D.  627,  M  N.  W.  814 72,  194,  245 

Weber,  in  re,  4  N.  D.  119,  59  N.  W.  523 235,  236,  243,  320,  510 

Weber,  Ins.  Co.  v.;  2  N.  D.  239,  50  N.  W.  703 235 

Weber  v.  Tschetter,  1  S.  D.  205,  46  N.  W.  201 197,  237 

Webster,  Evenson  v.  (on  rehearing);  5  S.  D.  266,  58  N.  W.  669 

51,  111,  132,  146,  246,  484 

Welch,  Kelsey  v.;  — S.  D.  — ,  66  N.  W.  390 142,  196,  197,  198,  204 

Wells,  Le  Claire  v.;  —  S.  D.  — ,  64  N.  W.  519 51,  246 

Welsh  V.  Barnes,  sheriff,  — N.  D.  — ,  65  N.  W.  675 195 

Wendt  V.  R.  R.  Co.:  4  S.  D.  476,  57  N.  W.  226 

92,  110,  123,  124,  125,  140,  168 

Western  Pub.  House  v.  Bachman  et  al,  2  S.  D  512,  51  N.  W.  214 101 

Western  Pub.  House  v.  Murdick  et  al,  4  S.  D.  207,  56  N.  W.  120 101 

Western  Union  Tel.  Co.,  Grigsby  v.;  5  S.  D.  561,  59  N.  W.  734 

4,  5,  19,  45,  46,  102,  146,  159 

Western  Union  Tel.  Co.,  Kirby  v.;  4  S.  D.  105,  55  N.  W.  759 27,  81 

Western  Union  Tel.  Co.,  Kirby  v.;  —  S.  D.  — ,  65  N.  W.  482 491,  501,  505 

Western  Union  Tel  Co.,  Kirby  v.;  4  S.  D.  439,  57    N.  W.  199 500 

Western  Union  Tel.  Co.,  Kirby  v.;  — S.  D.  — ,  60  N.  W.  152 171 

Western  Union  Tel.  Co.,  Kirby  v.;  4  S.  D.  463,  57  N.  W.  202 171 

White,  sheriff,  Gaines  v.;  IS.  D.  434,  47  N.  W.  624 36,  42,  67,  84,  178 

White  v.  Ry.  Co.,  1  S.  D.  326,  47  N.  W.  146 97,  239,  241 

Wilber  et  al,  Cheatham  v.;  1  Dak.  335,  46  N.  W.  580 64 

Williams  et  al,  Jerauld  Co.  v.;  —  S.  D.  — ,  63  N.  W.  905 

55,  57,  136,  142,  143,  170,  489 

Williams  v.  Northern  Pac.  R.  Co.;  3  Dak.  168,  14  -N,  W,  97 

100,  101,  107,  165 


TERRITORIAL  AND  DAKOTA   CASES.  XXXV 


Williams  T.  Waite,  2  S.  D.  210,  49  N.  W.  209 1»4,  309 

Williams  v.  Williams,  —  S.  D.  — ,  61  N.  W.  38. 

145,  152.  171.389.241,  242.  345 

Williamson  v.  McwL,  Bank  &  Inv.  Co.,  —  N.  D.  — ,  54  N.  W.  1026  . .  .83.  288 

Willis  V.  DeWitt,3S.  D.  281,  52  N.  W.  1090 41,  43 

Willow  Lake  Tp.,  Bank  T.;  1  N.    D.  36.  44  N.    W.  1002 Mfi 

Willsie  V.  R:inchCo.,  — S.  D.— ,  63  N.  W.  546 lU 

Wilmarth,  Aldrich  et  al  r.;  4  S.  D.  38,  54  N.  W.  1051 -K7 

Wilmarth.  Wvman  v.;  1  S.  D.  35,  44  N.  W.  11-51 .284, 2» 

Wilmarth,  Wfrnan  t.;  1  S.  D.  172,  46  N.  W.  190 9W 

Wilson,  CViUgbran  T.;  —  S.  D.  — ,  63  N.  W,  774. I-.US,  9K 

Wilwn,  State  v.;  4  S.  D.  535.  57  N.  W.  338 37S 

Windsor.  Greeley  v.:  3  S.  D.  138,-52  N.  W.  6-74 :_« 

.Windsor  et  al,  Greelej  v.:  1  S.  D.  618, 48  N.  W.214 299 

Wiadsor  et  al,  Greelev  v.:  2  S.  D.  361, -50  N.  W.  630 JUL,  312 

Winona  Lum.  Co.  v.  Church  et  al, —S.  D.— ,  62  N,  W.  107 118 

Wintermut^.  People  T.;  lDak.M<Me)46  N.  W.  mi «S 

Winton  v.  Kirby  et  al,  — S.  D.— «•  W-  W.  409 2ag,  2S8.  SKt,  iW 

Winton  v.  Knott,  sheriff,  — S.  D.— ,  €3  N.  W.  783 

1-54,  1-57,  382,  9W,  9K,  367 

Wm.  Deering&Ca  v.  Buaeell  et  al,  — S.  D.— ,  65  K.  W.  691 

3ft,  138,129,161,165 

Wm.  Deering&Co.,  SteTeos  t.;  — S.  D.— ,  60  N.  W.  739 131 

Woodv.  Nifisesi,  2  N.  D.  26,  ^  N.  W.  103 

64,75,190,184,188,212,245.463,471 

Wood.  U.S.  v.;  4  Dak.  455,  33  N.  W. -59 387 

WoodbuTT  et  al.  Territory  ex  rel  v.;  1  N.  D.  85,  44  N-  W.  M77 MB 

Wright  V.  Lee.4S   D.  237,  55N.  W.  931 193 

Wright  T.  Sherman,  3  S.  D.  367,  53  N.  W.  425 - 499 

Wvman  T.  Wilmarth,  IS.  D.  35,  44  N.  W.  11-51 -- JSt,238 

WymMi  T.  Wilmarth,  1  S.  D.  172,  46  N.  W.  190. .9H 

Yankton  Co.  v.  Roasteascber.  1  Dak.  120.  46  N.  W.  -575 140,  37S 

Yankton  F.  Ins.  Co.  t.  Fre.,   E.    &   M.   V.   R  Co.,  — S.  D.— ,  64  N.  W. 

514 19,  46,  Mtt 

Yankton  F.  Ins.  Co..  Fromberz  v.;  — S.  D.— ,  €3  JS.  W.  7«4 ML  MS 

Yetzer  T.  Young,  3  S.  D.  363,  -32  N.  W.  ia34 82,  IW 

Yorke  v.  Yorke.  3  X.  D.  343.  ->5  N.  W.  1095, 86 

Yorks,  Engle  v.;  — S.  D.— ,  64  N.  W,  132 S,  38.  45,  156,  286.  287 

Young,  Pitts'.  Agl  Works  v.;  —a  D.— ,  62  N.  W.  432.  .43,  44,  110.  119.  130 

Young  et  al,  Parliman  v.:  2  Dak.  175.  4  N.  W.  61 16.  17,  70,  1-59 

Young,  Yetzer  v.;  3  S.  D.  363,  -52  N.  W,  1054 82,  116 

Zeimet  v.  Phillips  et  al,  — S.  D.— ,  65  N.  W.  418 117 


ERRATA. 


Page  8— After  Rudolph  v.  Herman,  read  4  S.  D.  "203." 
Page  8— After  Greeley  v.  Windsor,  read  "3  S.  D.  138." 
'  Page  13— After  Marshall  v.  Mfg.  Co.,  3  S.  D.  473,  read  "47  N.  W.  272." 
Page  34— After  Everett  v.  Buchanan,  2  Dak.  249,  read  6  N.  W.  "439." 
Page  39 — Read  for  "submitted,"  in  bracket,  "substituted." 
Page  46 — In  11th  line  from  top  for  "would,"  read  "should." 
Page  48 — Near  bottom  of  page,   after  Williams  v.    Ely,   read    "13" 

Wis.  1. 

Page  49 — In  6th  line  from  top,  for  "effects"  read  "affects;"  also  3d  line 

from  bottom,  after  Golden   Terra  Min.  Co.  v.  Smith  et  al,  2  Dak.  377,  read 

11    N.  W.  "98." 

Page  51 — For   "Findings    Waived    Hour,"    read    "Findings    Waived 

How." 

Page  60 — Line  15,  read  "one"  after  "upon." 

Pages  61,  79,  179,  468— After  Pierce  v.  Manning,  read  "2  S.  D.  517." 
Page  63— After  Uhe  v.  Chi.,  M.  &  St,  P.  Ry.  Co.,  read   "4  S.  D.  505." 
Pages  70,  73 — After  Edwards  &  McCuIIoch   Lum.  Co.  v.  Baker,  read 

"3N.  D.  170." 

Pages  75,  84 — After  Golden  Terra  Min.  Co.  v.  Smith  et  al,  read  2  DaK. 

"377." 

Page  76 — Line  12,  for  "district"  read  "circuit"  (as  to  S.  D.). 
Pag«90— For    "State   v.   Chi.,    Mil.    &  St.    P.   Ry.  Co.,"  read  "Stone 

V."  etc. 

Page  97— After  Bennett  v.  N.  Pac.  R.  R.  Co.,  read  "3  N.  D.  91." 
Page  108— After   State  v.  Brewing  Co.,  5  S.  D.  39,  read  "58  N.  W.  1"; 

also  after  State  v.  Church.  — S.  D.— ,  read  60  N.  "W,"  143. 

Page  110— Line  10  from  bottom,  for  "Cavello"  read  "Kvello." 
Page  124— After  Uhe  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co.,  read  "3  S.  D.  563.'' 
Page  129— After  Bennett  v.  No.  Pac.  R.  Co.,  read  2  N.  D.  "112." 
Page  137— After  Golden  Terra  Min.  Co.  v.  Smith,  read  "2  Dak.  377,  11 

N.  W.  98." 

Page  139 — After  Ayres,  Weatherwax  «&  Reid  Co.  v.  Sundback,  sheriff, 

read  5  S.  D.  "31." 

Page  163— After  Grandin  v.  Grandin  (N.  J.  Supp.),  read  9  Atl.  "756." 

Page  171— After  Kirby  v.  Tel.  Co.,  read  4  S.  D.  "463." 

Page  190— Line  7,  for  "art.  6"  read  "art.  5." 

Page  199 — Line  16,  read,  immediately  after  citation  of  Muggli  case,  the 

words  "(on  hearing),   — S.  D. — ,  65  N,  W.  442,"  on  next  line. 


XXXVlll  ERRATA. 

Page  229— After  Conklin    v.   R.    R.    Co.    (Sup.),    read    "13"    N.    Y. 
Supp.  782. 

Page  241— After  St.  John  v.  West,  4  How.  Pr.,  read  "329." 
Page  249— After  Pierce  v.  Manning,  read  "2"  S.  D.  517. 
Page  260 — Line  3  of  Chap.  XI.,  for  "admissable"  road  "advisable." 
Page  280 — Third  line  from  bottom,  for  "chap.  II."  read  "chap.  11." 
Page  377— After  State  v.  Church,  read  "— S.  D.— ,  60  N.  W.  143." 
Page  380 — Line  7,  for  Supreme"  rejid  "Circuit." 
Page  393 — Line  7,  for  "amendable"  read  "amenable." 
Page  399— Line  3,  for  "Gade"  read  "Gay." 

Page  425— After  People  v.  Wintermute,  1  Dak.  60,  (102)  read  "46  N.  W. 
694." 

Page  440 — Line  3,  for  "order"  read  "record." 
Page  454— After  Holden  v.  Haserodt  et  al,  read  "2  S.  D.  220." 
Page  484 — After  Pierce  v.  Manning,  sheriff,  read  "1  S.  D.  306." 
Page  507— After  Holden  v.  Haserodt  et  al,  *read   "3  S.   D.   4,  51   N. 
W.  340." 

Page  510 — Eleventh  line  from  bottom,  for  "applicable"  read  "appeal- 
able." 

Page  511— After   McCormick  H.    M.  Co.   v.  Snedigar  et  al  (54  N.  W. 
814),  read  3  S.  D.  "625." 


ANNOTATED 

TRIAL   PRACTICE 

AND 

APPELLATE    PROCEDURE 

IN 

South  Dakota  and  North  Dakota. 


CHAPTER   I. 


Art.  2,  Chap.  12,  Code  of  Civil  Procedure, 
issues  and  mode  of  trial. 

ISSUES— ORIGIN  OF.  §  5027  Comp.  Laws;  Sec.  5415  Rev. 
Codes  N.  D.  Issues  arise  upon  the  pleadings  when  a  fact 
or  conclusion  of  law  is  maintained  by  the  one  party,  and  con^ 
troverted  by  the  other.     They  are  of  two  kinds: 

1.  Of  law;  and, 

2.  Of  fact. 

Sec.  231  C.  C.  P.;  Levisee  p.  70;  Wait's  Code  §248;  Harst  Pr.  Deer. 
Code  §  588. 

Finding  Foreign  to  Issue.  Where,  in  an  action  by  one  claiming  to  be 
the  owner  of  land  to  restrain  a  sheriff  from  selling  the  same  under  an  exe- 
cution against  plaintiff's  grantor,  the  answer  alleged  the  deed  from  plain- 
tiff's grantor  was  fraudulently  made  with  the  knowledge  of  plaintiff,  for  the 
purpose  of  placing  the  property  beyond  the  reach  of  grantor's  creditors,  and 


CODE  OF  CIVIL  PROCEDURE. 


the  abstract,  setting  out  pleadings  and  amendments  thereto,  shows  the 
case  was  tried  and  submitted  on  that  issue,  a  finding  of  the  trial  court  that 
such  deed  constitutes  a  mortgage  in  plaintiff's  favor  to  secure  the  amount 
which  the  court  finds  was  paid  by  him  to  his  grantor,  is  outside  of  and  for- 
eign to  the  issue  litigated.  Harkins  v.  Cooley  et  al.,  5  S.  D.  227,  58  N.  W. 
660;  City  of  Winona  v.  Minn.  Ry.  Const.  Co.  .27  Minn.  427,  6  N.  W.  795, 
and  8  N.  W.  148;  Mondran  v.  Goux,  51  Cal.  151;  Morenhout  v.  Barron,  42 
Cal.  605;  Devoe  v.  Devoe,  51  Cal.  543;  Giegory  v.  Nelson,  41  Cal.  278. 

ISSUE  OF  LAW.  §  5028  Comp.  Laws;  §  5416  Rev.  Codes 
N.  D.  An  issue  of  law  arises  upon  a  demurrer  to  the  com- 
plaint, answer  or  reply,  or  to  some  part  thereof. 

Sec.  232  C.  C.  P.;  Levisee  p.  70;  Wait's  Code  §  249;  Harst  Pr.  Deer 
Code  §  589. 

fSSUE  OF  FACT.  §  5029  Comp.  Laws;  §  5417  Rev.  Codes 
N.  D.     An  issue  of  fact  arises: 

1.  Upon  a  material  allegation  in  the  complaint  contro- 
verted by  the  answer;  or, 

2.  Upon  new  matter  in  the  answer  controverted  by  the 
reply;  or, 

3.  Upon  new  matter  in  the  repl^- ,  except  an  issue  of  law 
is  joined  thereon. 

[Sec.  5417  Rev.  Codes  N.  D.,  is  the  same  as  the  above  section,  except 
that  in  subdivision  2,  that  part  thereof  after  the  word  "answer"  is  as  fol- 
lows: "not  requiring  a  reply,  or  controverted  by  a  reply;  or"  and  the  word 
"unless"  is  substituted  for  "except"  in  subdivision  3.     (Am'd  Rev.  Com'rs.)] 

Sec.  233  C.  C.  P.;  Levisee  p.  70;  Wait's  Code  §  2-50;  Harst  Pr.,  Deer. 
Code,  §  590. 

Verified  Denial  Raises  Issue.  A  verified,  unqualified  denial  of  ma- 
terial facts,  such  as  the  defendant  is  allowed  to  deny,  raises  an  issue  of  fact 
which  either  party  is  entitled  to  have  tried  by  a  jury,  and  it  will  ordinarily 
be  error  to  strike  out  such  answer  as  sham.  Loranger  v.  Big  Missouri 
Min.  Co.,  —  S.  D.  — ,  61  N.  W.  686;  Wayland  v.  Tysen,  45  N.  Y.  281; 
Bank  v.  Inman,  (Sup.)  5  N.  Y.  Supp.  457;  Roby  v.  Hal  lock,  65  How.  Pi-. 
412;  Fay  v.  Cobb,  51  Cal.  313;  Greenbaum  v.  Turrill,  57  Cal.  285.  Findings 
— When  Not  Required.  In  an  action  to  foreclose  a  mechanic's  lien,  when 
no  answer  is  filed,  and  therefore  no  issues  of  fact  raised  by  the  pleadings, 
the  court  is  not  required  to  find  the  facts.  Cole  v.  Custer  County  Ag'i,  Min- 
eral &  Stock  Ass'n,  3  S.  D.  272,  52  N.  W.  1086;  Krause  v.Krause,  23  Wis.  354. 

ISSUES— ORDER  OF  TRIAL  §  5030  Comp.  Laws;  §  5418 
Rev.  Codes  N.  D.      Issues  both  of  law  and  of  fact  may  ai'ise 


ISSUES  AND  MODE  OF  TRIAL. 


upon  different  parts  of  the  pleadings  in  the  same  action.  In 
such  cases  the  issues  of  law  must  be  first  tried,  unless  the 
court  otherwise  direct. 

Sec.  234  C.  C.  P;  Levisee  p.  70;  Wait's  Code  ?  251. 

TRIAL  DEFINED.  §  5031  Comp.  Laws;  §  5419  Rev.  Codes 
N.  D.  A  trial  is  the  judicial  examination  of  the  issues  between 
the  parties,  whether  they  be  issues  of  law  or  of  fact. 

Sec.  235  C.  C.  P.;  Levisee  p.  70;  Wait's  Code  §  252. 

Findings  and  Conclusions  Unnecessary,  When.  "Trial."  In  an  ac- 
tion to  foreclose  a  mechanic's  lien,  when  no  answer  is  filed  nor  issue  of  fact 
tried,  the  court  is  not  required  to  find  the  facts  or  state  its  conclusions  of 
law  before  rendering  judgment.  It  will  be  presumed  in  the  absence  of 
proof  to  the  contrary,  that  the  court  heard  and  considered  the  necessary 
evidence  to  enable  it  to  give  judgment.  In  this  case  it  appears  from  the 
recitals  in  the  judgment  that  no  answer  was  filed,  and  therefore  no  issues  of 
fact  could  have  been  raised  to  be  decided  by  the  court.  Cole  v.  Custer 
County  Ag'l,  Mineral  &  Stock  Ass'n,  3  S.  D.  272,  52  N.  W.  1086;  Krause  v. 
Krause,  23  Wis.  354;  Potter  v.  Brown  Co.,  56  Wis.  272,  14  N.  W,  375.  The 
word  "trial"  is  sometimes  used  in  a  broad  sense,  including  all  the  steps 
taken  in  a  case  prior  to  final  judgment,  but  in  its  restricted  sense  it  includes 
the  investigation  of  facts  only,  and  in  this  sense  it  is  used  under  this  statute. 
State  V.  Hasledahl,  2  N.  D.  521,  52  N.  W.  315;  Jenks  v.  State,  39  Ind.  9. 

ISSUES— BY  WHOM  TRIABLE.  §  5032  Comp.  Laws.  An  issue 
of  law  must  be  tried  by  the  court  or  by  the  judge.  An  issue  of 
fact  for  the  recovery  of  money  only,  or  of  specific  real  or  per- 
sonal property,  must  be  tried  by  a  jury,  unless  a  jury  trial  be 
waived  as  provided  in  section  5065.  Every  other  issue  is  triable 
by  the  court  which,  however,  may  order  the  whole  issue  or 
any  specific  question  of  fact  involved  therein,  to  be  tried  by  a 
jury,  or  may  refer  it  as  provided  in  sections  5071  and  5072. 

SAME.  §  5420  Rev.  Codes  N.  D.  An  issue  of  law  must  be 
tried  by  the  court  or  by  the  judge.  An  issue  of  fact  in  an  ac- 
tion for  the  recovery  of  money  only  or  of  specific  real  or  per- 
sonal property  must  be  tried  by  a  jury,  unless  a  jury  trial  is 
waived  as  provided  in  section  5449,  or  a  reference  is  ordered  as 
provided  in  sections  5455  and  5456.  Every  other  issue  is  tria- 
ble by  the  court,  which,  however,  may  order  the  whole  issue 
or  any  specific  fact  involved  therein  to  be  tiied  by  a  jury  or  by 


CODE  OP  CIVIL  PROCEDURE. 


a  referee  as  provided  in  sections  5455  and  5456.     (Am'd  Rev. 
Com'rs. ) 

Sec.  236  C.  C.  P.  am'd  §  1  ch.  146,  1885;  Levisee  p.  70;  Wait's  Code 
U  253,  254;  Harst  Pr.  Deer.  Code  U  591,  592. 

Sec.  6  Art.  6  Const.  S.  D.  is  as  follows: 

The  right  of  trial  by  jury  shall  remain  inviolate,  and  shall  extend  to 
all  cases  at  law  without  regard  to  the  amount  in  controversy,  but  the  legis- 
lature may  provide  for  a  jury  of  less  than  twelve  in  any  court  not  a  court  of 
record,  and  for  the  decision  of  civil  cases  by  three-fourths  of  the  jurj'  in  any 
court. 

The  following  is  2  7  Art.  1  Const.  N.  D.: 

The  right  of  trial  by  jury  shall  be  secured  to  all,  and  remain  inviolate; 
but  a  jury  in  civil  cases,  in  courts  not  of  record,  may  consist  of  less  than 
twelve  men,  as  may  be  prescribed  by  law. 

Consent  to  Less  Number.  While  the  legislature  cannot  compel  a  lit- 
igant to  accept  less  than  a  constitutional  jury,  the  parties  themselves  in  a 
civil  action  may  voluntarily  consent  to  a  jury  of  any  number.  City  of  Huron 
V.  Carter,  5  S.  D.  4,  57  N.  W.  947;  Vaughn  v.  Scade,  30  Mo.  600;  Millett  v. 
Hayford,  1  Wis. 401;  Gillespie  v.  Benson,  18  Cal.  410;  Cravins  v.  Grant,  4  T. 
B.  Mon.  126;  Roach  y.  Blakey  (Va.),  17  S  E.  228.  Contempt.  In  contempt 
proceedings  under  ch.  110  Laws  1890  N.  D.,  the  party  charged 
with  contempt  is  not  entitled  to  have  the  charge  tried  to  a  jury. 
State  v.  Markuson,  . .  N.  D.  . . ,  64  N.  W.  934;  State  v.  Frew,  24  W^  Va.  416; 
State  V.  McClaugherty,  (W.  Va.)  10  S.  E.  407;  Hughes  v.  People,  5  Colo. 
436:  Ex  parte  Robinson,  19  Wall.  505;  Anderson  v.  Dunn,  6  Wheat.  204; 
People  V.  Wilson,  64  111.  195;  Batchelder  v.  Moore,  42  Cal.  415;  Wyatt 
V.  People,  (Colo.)  28  Pac.  961;  Arnold  v.  Com.,  44  Am.  Rep.  480. 
Jury  Not  Demandable  in  Lden  Foreclosure.  In  a  suit  to  enforce  a 
mechanic's  lien  a  jury  trial  is  not  demandable  as  matter  of  right  under  this 
section  (§  236  C.  C.  P.  Dak.);  nor  under  the  constitution  of  the  United  States, 
providing  that  in  suits  at  common  law  the  right  of  jury  trial  shall  be  pre- 
served. Gull  River  Lum.  Co.  v.  Keefe  et  al.,  6  Dak.  160,  41  N.  W.  743; 
Davis  V.  Alvord,  94  U.  S.  546.  Waiver  of  Submission  of  Fact  to  Jury. 
If,  upon  the  evidence  in  this  case,  the  question  whether  the  agent  of 
appellant  had  authority  to  make  the  agreement  or  lease  in  question  (the 
trial  court  having  assumed,  in  the  absence  of  proof  of  any  attempt  by  ap- 
pellant to  disprove  hi^  authority,  after  knowledge  of  his  act,  that  such  au- 
thority existed),  was  one  of  fact  for  the  jury,  appellant  waived  its  submis- 
sion to  the  jury  by  treating  the  case  as  presenting  questions  of  law  only, 
and  moving  the  court  to  direct  verdict  in  its  favor,  and  making  no  claim 
or  request  to  have  the  case  submitted  to  thejury.  Grigsby  v.  Western  Un- 
ion Tel.  Co.,  5  S.  D.  561,  59  N.  W.  734;  Barnes  v.  Perine,  12  N.  Y.  18; 
Winchell  v.  Hicks,  18  N.  Y.  565;  Leggett  v.  Hyde,  58   N.  Y.  275.     And  the 


ISSUES  AND  MODE  OF  TRIAL. 


court  having  adopted  appellant's  thec>rv  that  the  case  presented  questions 
of  law  only,  the  fact  that  it  decided  the  law  questions  adversely  to  appel- 
lant did  not,  in  the  absence  of  an  express  request  to  submit,  relieve  appel- 
lant from  the  effect  of  his  concession  that  there  were  no  questions  of 
fact  in  the  case.  Grigsby  v.  Western  Union  Tel.  Co.,  supra.  What 
Findings  Support  Judgment.  When,  upon  trial  in  the  circuit  court 
upon  appeal  upon  questions  of  both  law  and  fact,  from  the  county 
court  involving  appointment  of  a  guardian,  questions  of  fact  are  submitted 
to  a  jury,  whose  answers,  although  only  advisory,  are  referred  to  in  the 
judgment  of  the  court  as  having  been  "duly  considered,"  without  any  inti- 
mation of  dissatisfaction  with  them,  no  other  findings  being  found  in  the 
record  or  claimed  to  have  been  made,  it  will  be  understood  that  the  judg- 
ment was  based  upon  such  findings  of  the  jury.  Engle  v.  Yorks,  —  S.  D. — , 
64  N.  W.  132;  Hayne's  New  Tr.  &  App.  §  234.  Jury's  Right  to  Determine 
Facts.  See.  as  to  the  right  of  the  jury  to  determine  the  force  of  evidence, 
etc.,  §  5048  Comp.  Laws,  and  cases  cited  thereunder;  also  cases  cited  under 
subdivisions  6  and  7  of  §5088  Comp.  Laws. 

ISSUES— TRIAL  OF -TERMS.  §  5033  Comp.  Laws;  §  5421 
Rev.  Codes.  All  issues*  of  fact,  triable  by  a  jury  or  by  the 
court,  must  be  tried  before  a  single  judge.  Issues  of  fact  must 
be  tried  at  a  regular  term  of  the  circuit  court,  when  the  trial  is 
by  jury,  otherwise  "at  a  regular  or  special  term  as  the  court  may 
by  its  rules  prescribe.  Issues  at  law  must  be  tried  at  a  regular 
or  special  term  of  the  ciicuit  court,  or  by  the  court  in  vacation, 
or  judge  at  chambers.  If  by  the  court  in  vacation,  or  judge  at 
chambers,  the  same  may  be  heard,  tried  and  determined  in  any 
count}'  of  the  circuit  within  which  the  action  is  brought,  and 
judgment  thereon  entered  in  the  proper  county,  upon  the  giv- 
ing by  either  or  any  party  of  the  notice  prescribed  by  sec.  5034; 
but  in  such  case  no*  note  of  issue  need  be  filed,  and  any  judg- 
ment, final  decision  or  actual  determination,  made  upon  such 
trial  and  hearing,  may  be  appealed  from  in  the  same  manner 
and  subject  to  the  same  rules  and  provisions  as  in  cases  of 
other  appeals  from  actual  determinations  and  final  decisions  of 
any  regular  or  special  terms  of  the  circuit  courts  of  this  state. 

[Sec.  5421  Rev.  Codes  N.  D.,  is  the  same  as  the  above  section,  except 
that  the  term  "issues  of  law"  is  used  instead  of  "issues  at  law,"  and  the 
reference  therein  is  to  "section  5422"  instead  of  "section  5084."  (A,m'd  Rev. 
ComVs.  )  ] 

Sec.  237  C.  C.  P.  Am'd  §  1  ch.  147  1885;  Levisee  p.  70;  Wait's  Code 
§255. 


CODE  OF  CtVIL  PROCEDURE. 


Jurisdiction  of  Court,  at  Terms.  See.  9,  ch.  27,  Laws  1879,  auth- 
orized district  judges  to  appoint  additional  terms  of  court  in  any  county  or 
subdivision  of  their  districts.  Ch.  71,  Laws  1885,  amend  this  section  by  strik- 
ingout  the  word  "additional";  and  ch.  79,  Laws  1885,  approved  on  the  same 
day.  fixed  the  dates  of  terms  in  the  several  counties  of  the  fifth  judicial  dis- 
trict; held,  that  neither  of  the  last  named  acts,  nor  both  together,  had  the 
effect  to  repeal  said  sec.  9,  as  to  counties  of  the  fifth  judicial  district,  nor  to 
impair  the  aiuthority  of  the  judge  to  appoint  terms  therein;  and  when  such 
appointed  terra  is  held  uix>n  aday  designated  by  law  for  holdingaterm  in  an- 
other county,  it  will  be  presumed  in  this  court,  in  the  absence  of  a  contrary 
showing,  that  the  judge  adjourned  such  last-mentioned  term  as  authorized 
by  sec.  442  Comp.  Laws.  Myers  v.  Mitchell,  1  S.  D.  249,  46  N.  W.  245;  Reed 
V.  Bagley,  (Neb.)  38  N.  W.  827;  Burton  v.  Estate  of  Barlow,  65  Vt.  434; 
held,  further,  that  sec.  426  Comp.  Laws  (sec.  4,  ch.  13  Pol.  Code)  is  still  in 
force,  and  that  section,  under  which  the  term  in  question  was  called,  makes 
such  called  terms  "in  all  respects  the  same  as  the  general  terms  provided 
in  this  act,"  and  the  general  terms  provided  in  such  act  were  the  very  "reg- 
ular terms"  referred  to  in  sec.  5033  Comp.  Laws;  and  the  trial  court  in  this 
case  had  jurisdiction  to  hear  and  dispose  of  the.action.  Myers  v.  Mitchell, 
supra.  Jurisdiction— Judg-e  at  Chambers.  A  judgeatchambers has  jurisdic- 
tion to  issue,  or  direct  the  issue,  of  an  alternative  writ  of  mandamus,  return- 
able before  him  within  his  district,  and  outside  of  the  subdivision  in  which 
the  proceedings  are  entitled,  and  to  proceed  to  trial  and  issue  the  preemp- 
tory  writ  outside  of  such  subdivision.  Teri'itory  of  Dak.  ex  rel.  Eiseman  v. 
Shearer,  2  Dak.  332,  8  N.  W.  135;  see  also  Lacie  v.  Casanauva,  30  Cal.  560; 
sec.  712  Code  Civ.  Proc.  (sec.  5534  Comp.  Laws);  sec.  31  Code  Civ.  Proc. 
(sec.  4828  Comp.  Laws). 

NOTE  OF  ISSUE— CALENDAR— ORDER  OF  TRIAL  §  5034  Comp. 
Laws;  §  5421  Rev.  Codes  N.  D,  At  any  time  after  issue,  and  at 
least  ten  days  before  the  court,  either  party  may  give  notice  of 
trial.  The  party  giving  the  notice  shall  furnish  the  clerk,  at 
least  eight  days  before  the  court,  with  a  note  of  the  issue,  con- 
taining the  title  of  the  action,  the  names  of  the  attorneys,  and 
the  time  when  the  last  pleading  was  served;  and  the  clerk  shall 
thereupon  enter  the  cause  upon  the  calendar,  according  to  the 
date  of  the  issue.  There  need  be  but  one  notice  of  trial,  and 
one  note  of  issue  from  either  party,  and  the  action  must  then 
remain  on  the  calendar  until  disposed  of,  and  when  called  may 
be  brought  to  trial  by  the  party  giving  the  notice.  The  issues 
on  the  calendar  shall  be  disposed  of  in  the  following  order,  un- 
less, for  the  convenience  of  parties  or  th§  dispatch  of  business, 
the  court  shall  otherwise  direct: 


ISSUES  AND  MODE  OF  TRIAL. 


1.  Issues  of  fact  to  be  tried  by  a  jury. 

2.  Issues  of  fact  to  be  tried  by  the  court. 

3.  Issues  of  law. 

Sec.  238  C.  C.  P.;  Levisee  p.  71;  Wait's  Code  §§  256,  257;  Harst  Pr. 
Deer  Code,  §  593. 

Notice  of  Trial— Error  in  Date.  When  the  notice  of  trial  contains  an 
error  in  date  of  commencement  of  the  term,  the  month  and  year  being 
stated  correctly,  the  notice  is  sufficient,  as  a  litigant  is  bound  to  know  when 
the  terms  of  court  are  held,  and  is  therefore  apprised  of  the  mistake  in  the 
notice  and  of  the  true  date  intended  to  be  specified  therein.  Smith  v.  N. 
P.  R.  R.  Co.,  3  N.  D.  17,  53  N.  W.  173;  Ins.  Co.  v.  Kelsey,  13  How.  Pr.  535. 
Trials  at  Additional  Terms.  Under  ch.  79,  sec.  10,  Laws  1891  N.  D., 
the  same  business  can  be  transacted  at  an  additional  term  of  court  called  by 
the  judge  as  at  the  terms  fixed  by  the  statute.  Now  cases  can  be  noticed  for 
such  term  and  placed  on  the  calendar  thereof,  and  tried  thereat.  Smith  v. 
N.  Pac.  R.  R.  Co.  supra. 

EITHER  PARTY  PROCEEDS— SEPARATE  TRIALS.  §  5035  Comp. 
Laws;  §  5423  Rev.  Codes  N.  D.  Either  party,  when  the  case  is 
reached  upon  the  calendar,  and  in  the  absence  of  the  adverse 
party,  unless  the  court,  for  good  cause,  otherwise  direct,  may 
proceed  with  his  case,  and  take  a  dismissal  of  the  complaint,  or 
a  verdict,  or  judgment,  as  the  case  may  require.  A  separate 
trial  between  a  plaintiff  and  any  of  the  several  defendants  may 
be  allowed  by  the  court,  whenever,  in  its  opinion,  justice  will 
be  promoted. 

Sec.  239  C.  C.  P.;  Levisee  p.  71;  Wait's  Code  §  258;  Harst  Pr.  Deer. 
Code  §g581,  582,  584. 

Dismissal  of  Case  -Not  of  Appeal.  When  the  case  is  reached  upon 
the  calendar,  and  called  for  trial,  if  either  party  fail  to  appear,  the  adverse 
party  may  proceed  with  his  case,  take  a  dismissal  of  the  complaint,  a  ver- 
diet  or  judgment,  as  the  case  may  require,  but  he  cannot  under  that  section 
(sec.  5035  Comp.  Laws)  take  a  dismissal  of  the  appeal;  as,  where  the  appeal 
from  the  justice's  court  was  upon  questions  of  law  and  fact  and  a  new  trial 
was  demanded,  the  district  court  does  not  and  cannot  judicially  know  that 
the  case  is  one  of  appeal,  but  it  is  to  be  considered  and  treated,  under  that 
section,  as  an  action  originally  brought  in  that  court  Myers  v.  Mitchell,  1 
S.  D.  249.  46  N.  W.  245.  Dismissal,  When  Inoperative— Vacating,  Nunc 
Pro  Tunc  A  judgment  in  a  divorce  suit  having  been  rendered  in  favor  of 
plainliff  in  January,  defendant  made  a  motion  in  June  to  vacate  and  set  it 
aside;  the  motion  was  taken  under  advisement,  and  on  September  30,  upon 
plaintiff's   motion,  a  judgment  was  entered  dismissing  the  action;  and  in 


CODE  OF  CIVIL  PROCEDURE. 


December  the  motion  of  defendant  made  in  June  was  granted  and  the  Jan- 
uary judgment  vacated  and  set  aside,  and  the  order  of  vacation  thereof 
directed  that  the  same  be  entered  as  of  date  September  18th;  held,  that  the 
judgment  dismissing  the  action  was  inoperative  when  made,  but  took  effect 
upon  entry  of  the  nunc  pro  tunc  order  of  December,  which  latter  order 
was  legal  and  valid  and  must  be  held  as  made  prior  to  dismissal  of  the  ac- 
tion.    Todd  V.  Todd, . . . .  S.  D 63  N.  W.  777;  Mitchell  v.  Overman,  103 

U.  S.  62;  Gray  v.  Brignardello,  1  Wall.  636;  Ins.  Co.  v.  Boon,  95  U.  S.  117; 
and  see  Rudolph  v.  Her-man,  4  S.  D.  430,  56  N.  W.  122.  Dismissal 
— Intervention.  In  absence  of  a  counterclaim  or  demand  for  affirmative 
relief,  a  complaint  of  intervention  stating  a  cause  of  action  adverse  to 
both  plaintiff  and  defendant,  as  shown  by  .  the  pleadings,  may  be  dis- 
missed on  application  of  the  intervener.  Schaetzel  v.  City  of  Huron 
(White,  intervener), S.  D ,  60  N.  W.  741;  and  the  court  has  jurisdic- 
tion to  entertain  a  motion  to  discontinue,  though  it  was  not  made  at  the 
trial  term.  Id.;  Champion  v.  Com'rs,  5  Dak.  416,  41  N.  W.  739;  Smith  v. 
Dragert,  61  Wis.  222;  21  N.  W.  46;  Tyler  v.  Healy,  51  Cal.  191;  Tilton  v. 
Beecher,  59  N.  Y.  176;  Elliott  App.  Proc.  605  and  cases  there  cited;  sec. 
4828  Com  p.  Laws.  Separate  Trial— Reviewable  Error.  Unless  injury  to 
the  party  complaining  results  from  the  discretionary  ruling  of  a  trial  court 
upon  an  application  for  a  separate  trial  between  a  plaintiff  in  a  civil  action 
and  any  of  the  defendants,  such  ruling  will  not,  on  appeal,  be  subject  to  re- 
view. Noyes  et  al.  v.  Belding,  sheriff,  etal.,  5  S.  D.  603,  59  N.  W.  1069. 
Judgment  Vacated  Before  Amended  Complaint  Allowed.  When  in 
an  action  a  demurrer  to  the  complaimt  has  been  sustained,  and  judgment 
entered  dismissing  the  complaint,  it  is  error  to  allow  plaintiff  to  serve  and 
file  an  amended  complaint  without  first  setting  aside  or  vacating  the  judg- 
ment of  dismissal.  Greeley  v.  Windsor,  2  S.  D.  361,  52  N.  W.  674;  2  Wait's 
Pr.  517;  Tillspaugh  v.  Dick,  8  How.  Pr.  33;  Taft  v.  Transportation  Co.,  56 
N.  H.  417. 

PARTY  FURNISHING  PAPERS.  §  5036  Comp.  Laws;  §  5424 
Rev.  Codes  N.  D.  When  the  issue  shall  be  brought  to  trial  by, 
the  plaintiff,  he  shall  furnish  the  court  with  a  copy  of  the  sum- 
mons and  pleadings,  with  the  offer  of  the  defendant,  if  any 
shall  have  been  made.  When  the  issue  shall  be  brought  to 
trial  by  the  defendant,  and  the  plaintiff  shall  neglect  or  refuse 
to  furnish  the  court  with  a  copy  of  the  summons  and  pleadings 
and  the  offer  of  the  defendant,  the  same  may  be  furnished  by 
the  defendant. 

Sec.  240  C.  C.  P.;  Levisee  p.  71;  Wait's  Code  |  259. 


FORMATION  OF  THE  TRIAL  JURY. 


CHAPTER  II. 

Art.  3,  Chap.  12,  Code  of  Civil  Procedure, 
formation  of  the  trial  jury. 
JURY  BALLOTS.  §  5037  Comp.  Laws;  §  5425  Rev.  Codes 
N.  D.  At  the  opening  of  the  court  the  clerk  must  prepare  sep- 
arate ballots  containing  the  names  of  the  persons  returned  as 
jurors,  which  must  be  folded  as  nearly  alike  as  possible,  and 
so  that  the  names  cannot  be  seen,  and  must  deposit  them  in  the 
trial  jury  box. 

Sec.  241  C.  C.  P.;  Levisee  p.  71;  Harst  Pr.  Deer.  Code  §  246. 

CLERK  DRAWS  JURY.  §  5038  Comp.  Laws;  §  5426  Rev. 
Codes  N.  D.  When  the  action  is  called  for  trial  by  jury,  the 
clerk  must  draw  from  the  trial  jury  box  of  the  court  the  ballots 
containing  the  names  of  the  jurors  summoned,  until  the  jury 
is  completed  or  the  ballots  are  exhausted. 

Sec.  242  C.  C.  P.;  Levisee  p.  72;  Harst  Pr.  Deer  Code  §§  246,  600. 

Court  may  order  jurors  summoned  to  complete  panel,  §  445  b,  Comp. 
Laws;  or  to  fill  panel  m  particular  case  on  trial,  ?  445  c,  Comp.  Laws. 

WHO  CHALLENGES— CLASSIFICATION.  §  5039  Comp.  Laws; 
§  5427  Rev.  Codes  N.  D.  Either  party  may  challenge  the  jurors, 
but  where  there  are  several  parties  on  either  side,  they  must 
join  in  a  challenge  before  it  can  be  made.  The  challenges  are 
to  individual  jurors,  and  are  either  peremptory  or  for  cause. 
Each  party  is'entitled  to  three  peremptory  challenges.  If  no 
peremptory  challenges  are  taken  until  the  panel  is  full,  they 
must  be  taken  by  the  parties  alternately,  commencing  with  the 
plaintiff. 

Sec.  243  C.  C.  P.;  Levisee  p.  72;  Harst  Pr.  Deer  Code  §  601. 

CHALLENGES  FOR  CAUSE.  §  5040  Comp.  Laws;  §  5428  Rev. 
Codes  N.  D.  Challenges  for  cause  may  be  taken  on  one  or  more 
of  the  following  grounds: 

1.  A  want  of  any  of  the  qualifications  prescribed  by  the 
political  code  to  render  a  person  competent  as  a  juror. 

2.  Consanguinity  or  afiinity,  within  the  fourth  degree,  to 
either  party. 

2— TP 


10  CODE  OF  CIVIL  PROCEDURE. 

3.  Standing  in  the  relation  of  guardian  or  ward,  master 
and  servant,  employer  and  clerk,  or  principal  and  agent  to 
either  party,  or  being  a  member  of  the  family  of  either  party, 
or  being  a  partner  in  business  with  either  party,  or  surety  on 
any  bond  or  obligation  for  either  party. 

4.  Having  served  as  a  juror  or  been  a  witness  on  a  prev- 
ious trial  between  the  same  parties  for  the  same  cause  of  action. 

5.  Interest  or  the  part  of  the  juror  in  the  event  of  the  ac- 
tion, or  in  the  main  question  involved  in  the  action,  except  his 
interest  as  a  member  or  citizen  of  a  municipal  corporation. 

6.  Hav^ing  an  unqualified  opinion  or  belief  as  to  the  merits 
of  the  action,  founded  upon  knowledge  of  its  material  facts,  or 
some  of  them. 

7.  The  existence  of  a  state  of  mind  in  the  juror  evincing 
enmity  against,  or  bias  to  or  against,  either  party. 

8.  That  he  dees  not  understand  the  English  language  as 
used  in  the  courts. 

Sec.  244  C.  C.  P.;  Levisee  p.  72;  Harst  Pr.  Deer.  Code  §  602. 

Prejudicial  Error.  The  ruling-  of  the  court,  sustaining  a  challenge  to 
a  juror  for  cause,  although  not  justified  by  the  facts  disclosed  in  his  examin- 
nation,  is  not  error  for  which  a  judgment  will  be  reversed,  when  he  might 
have  been  challenged  peremptorily  by  the  same  party,  and  it  not  appearing 
that  the  defendant  was  prejudiced  by  such  ruling,  the  cause  having  been 
tried  by  a  competent  jury.  Herbert  v.  N.  Pac.  R.  R.  Co.,  3  Dak.  38,  13  N. 
W.  349;  Morrison  v.  Lovejoy,6  Minn.,  319,  (Gil.  224);  Atlas Min.Co.  v.  John- 
son, 23  Mich.  36.  Question  for  Court.  The  qualifications  of  a  juror,  when 
challenged  for  cause,  become  a  question  of  fact  for  the  trial  court.  Haugen  v. 
Chi.,  Mil.  &  St.  Paul  Ry.  Co.,  3  S,  D  394,  53  N.  W.  769.  The  statute  having 
prescribed  the  grounds  for  disqualification,  when  either  of  these  grounds  is 
found  to  exist,  it  is  the  duty  of  the  trial  court  to  reject  the  juror;  but  if  af- 
ter full  examination  of  him  personally,  or  by  testimony  of  other  persons, 
the  trial  court  finds  that  uone  of  the  statutory  disqualifications  exists,  and 
accepts  the  juror,  its  decision  will  not  be  reversed,  unless  it  is  made  to  ap- 
pear that  there  was  no  legal  evidence  to  support  its  judgment.  Haugen  v. 
Chi.,  Mil.  &  St.  P.  Ry.  Co.,  supra.  Bias.  The  word  "bias,"  as  used  in  sub- 
divisions 6,  7,  section  5040  Comp.  Laws,  means  such  a  leaning  of  the  mind 
or  propensity  towards  an  object  as  does  not  leave  the  mind  indifferent,  but 
shows  that  it  is  under  an  influence  which  sways  it  to  one  side,  and  will  tend 
to  prevent  the  juror  from  deciding  the  case  according  to  the  evidence. 
Haugen  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co.  3  S.  D.  394,  53  N.  W.  769.     DisquaU- 


FORMATION  OF  THE  TRIAL  JURY.  11 

fying  Opinion.  An  unqualified  opinion  or  belief  as  to  the  merits  of  the  ac- 
tion, founded  upon  knowledge  of  the  material  facts  or  some  of  them, 
disqualifies  a  person  from  sitting  as  a  jurror.  This  is  the  language  of 
the  code.  Haugen  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co.,  supra.  Must  be  Abiding 
Bias.  The  theory  of  the  law  is  that  a  juror  who  has  formed  an  opinion 
cannot  be  impartial,  but  every  opinion  he  may  entertain  need  not  neces- 
sarily have  that  effect.  The  opinion,  to  disqualify,  must  be  an  abiding 
bias  of  the  mind,  based  upon  the  substantial  facts  in  the  case,  in  the 
existence  of  which  he  believes.  Haugen  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co., 
3  S.  D.  394,  63  N.  W.  769;  Reynolds  v.  U.  S.,  98  U.  S.  145;  State  v.  Meaker, 
64  Vt.  112;  State  v.  Meyer,  68  Vt,  457,  3  Atl,  196;  People  v.  Cochran,  61 
Cal.  548;  Dolan  v.  State,  40  Ark.  454;  O'Connor  v.  State,  9  Fla.  215;  State 
v.  Smith,  49  Ct.  376;  The  Anarchists'  Case,  123  U.  S.  131,  8  Sup.  Ct.  Rep. 
21;  State  v.  Ormlstou,  66  la.  143,  23  N.  W.  370;  Murphy  v.  State,  15  Neb. 
383,  19  N.  W.  489;  McHugh  v.  State,  42  Ohio  St.  154;  Scranton  v.  Stewart, 
52  Ind.  68.  Hypothetical  Opinion.  An  unqualified  opinion  or  belief,  as 
used  in  the  code,  is  such  a  settled  conviction  in  the  mind  of  the  juror, 
founded  upon  a  knowledge  of  the  facts  of  the  case,  as  would  raise  a  strosg 
presumption  of  partiality;  but  a  hypothetical  opinion,  founded  on  hearsay 
or  information,  and  unaccompanied  with  malice  or  ill  will,  will  not  support 
a  challenge  for  bias.  Haugen  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co.,  supra. 
Discretion  of  the  Judge.  In  determining  the  impartiality  of  a  juror, 
the  trial  judge  is  clothed  with  large  discretion,  and  his  finding  is  not  to  be 
determined  by  any  inflexible  rules.  Much  must  depend  upon  the  character 
of  the  juror  as  disclosed  by  his  bearing,  and  upon  his  relation  to  the  par- 
ties. The  standard  is  a  man  who  will  act  with  entire  impartiality  as  a 
juror  in  a  given  case.  Prom  the  surroundings  the  trial  judge  must  de- 
termine, and  from  that  judgment  there  is  no  appeal  if  it  is  not  exercised  in 
an  arbitrary  manner,  but  is  a  fair  legal  judgment,  deduced  from  the  facts  as 
they  are  presented.  Haugen  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co.,  supra.  A  jur- 
or swore  that  he  had  formed  an  opinion,  but  it  was  based  upon  conversations 
had  with  persons  who  knew  nothing  about  any  of  the  facts  in  the  case.  The 
conversations  were  general  current  talk.  Notwithstanding  his  opinion  he 
could  and  would  sit  as  a  juror  in  the  case,  unprejudiced  and  unbiased,  and 
render  a  verdict  according  to  law  and  evidence.  Held,  the  trial  court  com- 
mitted no  error  in  permitting  the  juror  to  sit  on  the  panel.  Haugen  v.  Chi., 
Mil.  &  St.  P.  Ry.  Co.  3  S.  D.  394,  53  N.  W.  769. 

COURT  TRIES  CHALLENGES.  §  5041  Comp.  Laws;  §  5429 
Rev.  Codes  N,  D. .  Challenges  for  cause  must  be  tried  by  the 
court.  The  juror  challenged  and  any  other  person  may  be  ex- 
amined as  a  witness  on  the  trial  of  the  challenge. 

Sec.  245,  C.  C.  P.;  Levisee  p.  73;  Harst  Pr.  Deer  Code  §  603. 


12  CODE  OF  CIVIL  PROCEDURE. 

Must  Show  Prejudice.  It  is  for  the  defendant  to  show  that  it  was 
prejudiced  by  the  decision  of  the  court  sustaining  a  challenge  to  a  juror  for 
cause;  and  although  not  justified  by  the  facts  disclosed  in  the  examination 
of  the  juror,  such  ruling  is  not  error  for  which  a  judgment  will  be  reversed, 
when  he  might  have  been  challenged  peremptorily  by  the  same  party,  and 
it  not  appearing  that  defendant  was  prejudiced  by  such  ruling,  the  cause 
having  been  tried  by  a  competent  jury.  Herbert  v.  N.  Pac.  R.  R.  Co.,  3 
Dak.  38,  13  N.  W.  349;  Morrison  v.  Lovejoy,  6  Minn.  319  (Gil.  224);  Atlas 
Min.  Co.  v.  Johnson,  23  Mich.  36, 

JURORS'  OATH.  §  5046  Comp.  Laws;  §  5430  Rev.  Codes. 
N.  D.  As  soon  as  the  jury  is  completed,  the  following  oath  must 
be  administered  to  the  jurors: 

''You,  and  each  of  you,  do  solemnly  swear,  that  you  will 
well  and  truly  try  the  matters  in  issue  between ,  the  plain- 
tiff, and ,  defendant,  and  a  true  verdict  rendered  accord- 
ing to  the  evidence.     So  help  you,  God." 

If  any  person  be  conscientiously  scrupulous  of  taking  an 
oath,  he  shall  be  allowed  to  make  affirmation,  substituting  for 
the  words  "So  help  you  God,"  at  the  end  of  the  oath,  the  fol- 
lowing: "This  you  do  affirm  under  the  pains  and  penalties  of 
perjury." 

Sec.  246  C.  C.  P.;  Levisee,  p.  73;  Harst.  Pr.  Deer.  Code  g  604. . 

See,  as  to  the  swearing  of  jurors  in  criminal  cases.  Territory  v.  O'Hare, 
1  N.  D.  30,  44  N.  W.  1003,  cited  under  sections  7349  and  7351  Comp.  Laws, 
sections  8154,  8156,  Rev.  Codes  N.  D.;  State  v.  Hasledahl,  2  N.  D.  521,  52 
N.  W.  315,  cited  under  section  7401  and  section  5031,  Comp.  Laws,  sections 
8213,  5419,  Rev.  Codes,  N.  D. 


CHAPTER  m. 


Art.  4,  Chap.  12,  Code  of  Civil  Procedure. 
of  the  conduct  of  the  tbial. 

TRIAL,  ORDER  OF.      §  5047  Comp.  Laws;  §  5431  Rev.  Codes 
N.  D.     When  the  jury  has  been  sworn,  the  trial  must  proceed 
in  the  following  order,  unless  the  judge,  for  special  reasons 
otherwise  directs: 


OF  THE  CONDUCT  OF  THE  TRIAL.  13 

1.  The  plaintiff,  after  stating  the  issue  and  his  case,  must 
produce  the  evidence  on  his  part. 

2.  The  defendant  may  then  open  his  defense,  and  offer 
evidence  in  support  thereof. 

3.  The  parties  may  then  respectively  offer  rebutting  evi- 
dence only,  unless  the  court,  for  good  reason,  in  furtherance  of 
justice,  permit  them  to  offer  evidence  upon  their  original  case. 

4.  When  the  evidence  is  concluded,  unless  the  case  is  sub- 
mitted to  the  jury  on  either  side  or  on  both  sides  without  argu- 
ment, the  plaintiff  must  commence  and  may  conclude  the  argu- 
ment. 

5.  If  several  defendants,  having  separate  defenses,  appear 
by  different  counsel,  the  court  must  determine  their  relative 
order  in  the  evidence  and  argument. 

6.  The  court  may  then  charge  the  jury.  / 
Sec.  247  C.  C.  P.;  Levisee  p.  73;  Harst.  Pr.  Deer  Code  U  607,  2042. 
Nonsuit.     It  was  held,  in  Holt  v.  Van  Eps,  1  Dak.  198,  46  N.  W.  689, 

in  an  action  of  replevin,  where  defendant  moved  for  nonsuit  when  plaintiff 
rested  his  case,  that  the  motion  was  properly  denied,  that  a  peremptory 
nonsuit  cannot  be  ordered  against  the  will  of  the  plaintiff;  following  Elmore 
V.  Graymes,  1  Pet.  469,  and  D'wolf  v.  Rabaud,  1  Pet.  476;  and  see  to  the 
same  effect,  Crane  v.  Lessee  of  Morris,  6  Pet.  598;  Hyde  v.  Barker,  1  Pin. 
(Wis.)  305;  Baxter  v.  Bayne,  Id.  501. 

In  the  case  of  Sanford  v.  Bell  et  al.  (or  Sanford  v.  Duluth  &  Dak.  El. 
Co.)  2  N.  D.  6,  48  N.  W.  434  (436),  the  North  Dakota  court,  while  consider- 
ing the  question  whether  it  was  necessary  in  the  case  then  before  it,  that  a 
motion  for  a  new  trial  should  have  been  made,  use  this  language  with  refer- 
ence to  nonsuits,  after  referring  to  the  California  statutes  and  decisions  reg- 
ulating exceptions  and  new  trials  as  governing  the  practice:  "In  Califor- 
nia the  practice  of  directing  nonsuits  prevails;  but  such  practice,  so  far  as 
the  question  we  are  considering  is  concerned,  is  substantially  the  same  as 
directing  a  verdict.  In  both  cases  the  court  passes  upon  the  legal  sufficien- 
cy of  the  evidence  to  warrant  a  judgment;"  citing  Marshall  v.  Mf'g  Co.,  3 
S.  D.  473,  47  N.  W.  290;  Hayne  New  Tr.  &  App.,  p.  284,  sec.  100.  While  it 
is  generally  true  that  a  plaintiff  has  a  right  to  discontinue  his  action,  he 
ought  not  to  be  allowed  to  do  so  unconditionally,  where  to  so  discontinue 
would  manifestly  work  a  serious  wrong  to  defendant.     Axion   Min.    Co.   v. 

Little,  ....  S.  D •,  61   N.  W.  441;  5  Am.  &  Eng.  Ency.  of  Law,  p.  676, 

and  cases  there  cited;  Schaetzel  v.  City  of  Huron, S.  D ,  60  N.  W. 

741.  Error  Without  Prejudice.  A  judgment  will  not  be  disturbed  because 
the  trial  court,  against  objection,  allowed  defendant's  counsel  to  make  the 


14  CODE  OF  CIVIL  PROCEDURE. 

opening  and  closing  argument,  when  from  the  record  it  affirmatively  ap- 
pears that  no  injustice  could  have  resulted  therefrom.  Laney  v.  Ingalls,  5 
S.  D.  183,  58  N.  W.  572;  Parker  v.  Kelly,  61  Wis.  552,  21  N.  W.  539;  Bank 
V.  St.  John,  17  Wis.  157;  Bank  v.  Shakman,  30  Wis.  333. 

[Author's  Note.]  Reinforcing  Plaintiff's  Case— Rebuttal  Discre- 
tionary. The  admission  or  exclusion  of  evidence  not  strictly  in  rebuttal  is 
discretionary  with  the  trial  court,  which  discretion  is  not  subject  to  review 
except  in  cases  of  gross  abuse.  Thomp.  on  Tr.  section  346;  Farmers'  Mutual 
Fire  Ins.  Co.  v.Bair,  87  Pa.  St.  124;  Marshal  v.  Davies  78  N.  Y.  414  (reversing 
16  Hun.  606);  Huntsman  v.  Nichols,  116  Mass.  521;  Dozier  v.  Jerman,  30  Mo. 
216;  Walker  v.  Walker  14  Ga.  242  Daily  v.  Grimes,  27  Md.  440;  McCoy  v.  Phil- 
lips, 4  Rich.  (S.  C.)  463.  Material  testimony  should  not  be  excluded  because 
offered  by  plaintiff  after  defendant  has  rested,  although  not  in  rebuttal,  un- 
less it  has  been  kept  back  by  a  trick  and  to  deceive  defendant  and  to  affect  his 
case  injurously.  Thomp.  v.  Tr.  section  346;  Richardson  v.  Lessee  etc.  4 
Binn.  (Pa.)  198;  Rucker  v.  Eddings,  7  Mo.  115;  Dozier  v.  Jerman  30  Mo. 
216.  The  rule  supposes  that  the  case  as  first  made  by  plaintiff  shall  be  cal- 
culated to  apprise  defendant  of  the  ground  on  which  the  right  of  recovery 
is  finally  to  be  supported.  If  a  new  case  is  made  in  the  close,  without  pre- 
vious notice,  defendant  should  be  allowed  to  go  into  evidence  in  answer  to 
it.  Clays  v.  Ferris,  10  Vt.  112.  Where  plaintiff's  case  is  vigorously  as- 
sailed, he  should  be  allowed  to  introduce  in  rebuttal  additional  corroborat- 
ing evidence.  Thomp.  v.  Tr.  section  346;  Bryan  v.  Walton,  20  Ga.  480; 
Davidson  v.  Overhulser.  3  Iowa,  196. 

Liimitations — Burden  of  Proof.  When  a  party  pleads  the  statute  of 
limitations  as  a  defense  to  a  promissory  note,  and  such  note  is  introduced  in 
evidence  by  the  opposing  party,  and  it  appears  upon  its  face  to  be  barred  by 
the  statute — the  court  taking  judicial  notice  of  when  the  action  was  com- 
menced— the  burden  of  proof  of  such  facts  as  will  show  the  note  is  not  in  fact 
barred   devolves  upon  the   party  claiming  under  the  note.     Dielraann  v. 

Citizens  Nat.  Bank  of  Madison, S.   D 66  N.   W.  311;  Searls  v. 

Knapp,  5  S.  D.  325, 58  N.  W.  807;  and  in  such  case,  if  the  party  claiming  un- 
der the  note  fails  to  rebut  the  prima  facie  case  which  the  introduction  of 
the  note  in  evidence  makes  for  the  party  pleading  the  statute,  the  court  is 
justified  in  finding  that  the  note  is  barred.  Id.  The  note,  though  appear- 
ing upon  its  face  to  be  barred  by  the  statute,  cannot  be  held  to  be  barred 
until  the  opposing  party  has  had  an  opportunity  to  rebut  such  prima  facie 
case  made  by  the  note  itself.  Dielmann  v.  Bank,  supra;  Meyer  v.  School 
Dist.,  4  S.  D.  420,  57  N.  W.  68. 

INSTRUCTIONS,  HOW  GIVEN  AND  REFUSED.  §  5048  Comp. 
Laws.  The  court,  in  charging  the  jury,  shall  only  instruct  as 
to  the  law  of  the  case;  and  no  judge  shall  instruct  the  petit 
jury  in  any  case,  civil  or  criminal,  unless  such  instructions  are 
« 


OF  THE  CONDUCT  OF  THE  TRIAL.  15 

reduced  to  writing;  and  when  instructions  are  asked  which  the 
judge  cannot  give,  he  shall  write  on  the  margin  thereof  the 
word  ''refused,"  and  such  as  he  approves  he  shall  write  on  the 
margin  thereof  the  word  ''given";  and  he  shall  in  no  case,  af- 
ter instructions  are  given,  qualify,  modify,  or  in  any  manner 
explain  the  same  to  the  jury,  otherwise  than  in  writing;  and 
all  instructions  asked  for  by  counsel  shall  be  given  or  refused 
by  the  judge,  without  modification  or  change,  unless  such  mod- 
ification or  change  &hall  be  consented  to  by  the  counsel  asking 
the  same. 

SAME.  §  5432  Rev.  Codes  N.  D.  The  court  in  charging  a 
jury  shall  only  instruct  as  to  the  law  of  the  case;  and  no  court 
shall  instruct  the  jury  in  any  civil  case,  unless  such  instruc- 
tions are  first  reduced  to  writing.  Either  party  may  request 
instructions  to  the  jury.  Each  instruction  so  requested  must 
be  written  on  a  separate  sheet  and  may  be  given  or  refused  by 
the  court,  and  the  court  shall  write  on  the  margin  of  such  re- 
quested instruction  given  by  him  the  word,  "given,"  and  on  the 
margin  of  those  which  he  does  not  give  he  shall  write  the 
word,  "refused,"  and  all  instructions  asked  for  by  the  counsel 
shall  be  given  or  refused  by  the  court  without  modification  or 
change,  unless  modified  or  changed  by  consent  of  counsel  ask- 
ing the  same.  The  court  may  in  its  discretion  submit  the  writ- 
ten instructions,  which  it  proposes  to  give  to  the  jury,  to  coun- 
sel in  the  case  for  examination,  and  require  such  counsel  af- 
ter a  reasonable  examination  thereof  to  designate  such  parts 
thereof  as  he  may  deem  objectionable,  and  such  counsel  must 
thereupon  designate  such  parts  of  such  instructions  as  he  may 
deem  improper,  and  thereafter  only  such  parts  so  designated 
shall  be  excepted  to  by  the  counsel  so  designating  the  same. 
(Laws  of  1893,  §  1  Chap.  84,  amended. ) 

Sec.  248,  C.  C.  P.;  Levisee  p.  73:  Harst  Pr.  Deer  Code  §  608,  609. 

Consult  decisions  under  §  5049  Comp.  Laws;   §  543S  Rev.  Codes   N.   D. 

1.  Oral  Instructions— Waiver.  Where  instructions  are  given  orally, 
and  taken  down  in  short-hand  by  court  stenographer,  but  are  not  tai^en  by 
the  jury  in  their  retirement,  and  no  objection  is  made  at  the  time  to  this 
method  of  giving  them,  exception  thereto  is  waived.  Stamm  v.  Coates,  4 
Dak.  69,  22  N.  W.  593.     While  the  statute  requires  the  charge  to  the  jury 


16  CODE  OF  CIVIL  PROCEDURE. 

to  be  exclusively  in  writing,  yet  where  oral  instructions  are  given  without 
objection  at  the  time  upon  that  ground,  the  error  is  waived.  Boss  v.  North- 
ern Pac.  R.  Co.  2  N.  D.  128,  49  N.  W.  655;  Sack.  Instruc.  Juries,  14;  Garton 
V.  Bank,  34  Mich.  279;  State  v.  Sipult,  17  Iowa,  575;  Vanwey  v.  State,  41 
Tex.  639.  Formal  Language  Unnecessary.  The  court  is  not  bound  to 
give  instructions  in  the  forms  and  language  in  which  they  are  asked;  if  those 
given  are  correct  and  sufficiently  cover  the  case,  the  judgment  will  not  be 
disturbed.  Parliman  v.  Young  et  al.  2  Dak.  175,  4  N.  W.  (51.  Abstract 
Propositions.  It  is  not  error  to  refuse  to  give,  as  the  law  of  the  case,  in- 
structions which  are  simple  abstract  proposition^  of  law.  Parliman  v. 
Young  et  al.,  2  Dak.  175,  4  N.  W.  61.  Redundant  Instructions.  It  is 
not  error  to  refuse  to  give  instructions  )equested  that  are  correct  in 
law  and  applicable,  where  the  charge  already  given  fairly  covers  the  point. 
Daeley  et  al.  v.  Minn.  &  N.  E.  Co.,  4  N.  D.  269,  60  N.  W.  59. 
Special  Questions — Discretion.  Where  instructions  fully  cover  the 
facts,  it  is  not  error  to  refuse  to  submit  certain  special  questions  to  the  jury 
and  instruct  them  that  they  may  in  their  discretion  render  a  special  ver- 
dict; it  is  discretionary  with  the  court  whether  he  will  so  charge  or  not. 
Moline  Plow  Co.  v.  Gilbert  et  al.,  3  Dak.  239,  15  N.  W.  1;  sees.  5049,  5061, 
Comp.  Law;  Jones  v.  Ins.  Co.,  61  N.  Y.  79;  Schultz  v.  Cresna  (Iowa)  13  N. 
W.  59;  Peck  v.  Snyder,  13  Mich.  21;  1  Burr.  Pr.  242;  Tidd.  Pr.  897. 
Ruling  Out  Evidence.  In  an  action  to  recover  land,  plaintiff  being 
in  possession  and  general  owner  subject  to  a  tax  deed,  said  deed  being  void 
on  its  face,  held,  the  deed  was  properly  ruled  out  and  an  instruction  to  the 
jury  to  disregard  it  was  proper.  Heger  v.  DeGroat,  3  N.  D.  354,  56  N.  W. 
150. 

2.  Submitting  Facts — Instructions  as  to.  In  an  action  for  value  of 
grain  burned,  held,  under  the  facts,  that  an  instruction  that  there  was  no 
evidence  contradicting  defendant  as  to  setting  the  fire  was  proper.  Moe  v. 
Job,  1  N.  D.  140,  45  N.  W.  700.  In  an  action  for  value  of  lumber  sold,  held, 
under  the  facts,  it  was  error  to  refuse  to  submit  to  the  jury  the  question 
whether  the  price  agreed  upon  was  different  from  that  appearing  in  the  in- 
voice. Edwards  &  McCullochCo.  v.  Baker,  2  N.  D.  289,  50  N.  W.  718.  'In 
an  action  between  mortgagee  and  representative  of  a  creditor  of  mortgagor, 
involving  validity  of  a  mortgage  claimed  to  be  void  for  want  of  witnesses, 
held,  under  the  facts,  that  the  court  erred  in  refusing  to  submit  to  the  jury 
the  question  of  proper  execution  of  the  mortgage;  Keith  v.  Haggart,  2  N. 
D.  18,  48  N.  W.  432.  In  a  suit  for  possession  of  property,  the  question  of 
right  to  exemptions,  exercised  in  this  case  by  the  wife  on  behalf  of  the  fam- 
ily, being  involved,  lield,  under  the  evidence,  that  the  evidence  was  right- 
fully submitted  to  the  jury;  Linander  v.  Longstaff,    S.  D ,  63  N. 

W.  775. 

3.  Assuming  Facts.  It  is  not  error  to  refuse  instructions  which  as- 
sume facts  as  proved,  concerning  which  there  is  conflict  of  evidence;  Parli- 


OF  THE  CONDUCT  OF  THE  TRIAL.  17 

man  v.  Young  et  al.  2  Dak.  175,  4  N.  W.  61.  An  instruction  i^  properly  re- 
fused which  assumes  and  is  predicated  upon  a  fact,  as  established,  which 
the  evidence  leaves  in  dispute.  Rapp  v.  Giddings,  4  S.  D.  492,  57  N.  W. 
237.  In  an  action  for  purchase  price  of  a  straw  stacker,  where  the  sale 
thereof  was  denied  and  an  oral  agreement  relative  to  taking  same  on  trial 
was  alleged,  a  written  order  for  the  machine  having  been  signed,  held,  that 
an  instruction  to  the  effect  that  defendants  might  refuse  to  take  the  ma- 
chine before  they  took  possession  of  it  was  error.  Reeves  «fe  Co.  v.  Corrigan  et 
al,  3  N.  D.  415,  57  N.  W.  80;  Fahey  v.  Machine  Co.  3  N.  D.  220,  55  N.  W.  580. 
In  an  action  for  balance  of  purchase  price  of  a  gas  and  electric  plant,  a 
counter  claim  for  deceit,  etc.,  being  set  up,  held,  under  the  evidence,  that 
the  court's  instruction  improperly  assumed  that  defendant  had  the  means  of 
investigating  the  plant  at  hand  and  was  bound  to  know  the  facts.  Fargo 
Gas  &  Coke  Co.  v,  Fargo  G.  &  E.  Co.,  4  N.  D.  219,  59  N.  W.  1066;  Mead  v. 
Bunn,  32  N.  Y.  280;  Redding  v.  Wright,  (Minn.)  51  N.  W.  1056;  Maxfield  v. 
Schwartz,  45  Minn.  150,  47  N.  W.  448;  Gardner  v.  Trenary,  65  Iowa,  649,  22 
N.  W.  912;  Schumaker  v.  Mather,  133  N.  Y.  590,  30  N.  E.  755;  McClellau  v. 
Scott,  24  Wis.  81;  Caldwell  v.  Henry,  76  Mo.  254;  Oswald  v.  McGehee,  28 
Miss.  340;  Cottrill  v.  Krum,  100  Mo.  397,  13  S.  W.  753;  Campbell  v.  Frank- 
ern,  65  Ind.  591;  Kerr,  Fraud  &  M.  77,  80,  81;  Erickson  v.  Fisher  (Minn.) 
53  N.  W.  638;  Alfred  Shrimpton  &  Sons  v.  Philbrik  (Minn.)  55  N.  W.  551; 
Brandt  v.  Frederick  (Wis.)  47  N.  W.  6;  Bigel.  Fraud,  522,  528.  In  an  ac- 
tion for  wheat,  against  a  sheriff  who  seized  it  under  special  execution  on 
foreclosure,  held,  that  instructions  asked  requiring  the  court  to  assume  facts 

which  are  in  issue  were  properly  refused;  Kvello  et  al  v.  Taylor, S.  D. 

....  63  N.  W.  889. 

4.   Directing  Verdict 

Jjevy.  In  an  action  against  a  sheriff  for  amount  of  a  judgment  in 
favor  of  plaintiff,  an  execution  which  defendant  refuses  to  levy,  on  the 
ground  that  there  was  a  valid  mortgage  on  the  property  in  question,  Held, 
under  the  facts,  that  the  court  properly  directed  a  verdict  for  plaintiff  as 
matter  of  law.  Jewett  et  al  v.  Sundback,  sheriff,  5  S.  D.  Ill,  58  N.  W.  20; 
Mechem,  Pub.  Off.  section  749,  751;  Marshal  v.  Hosmer,  4  Mass.  63,  Bond 
V.  Ward,  7  Mass.  123;  Ayres,  Weatherwax  &  Reid  Co.  v.  Sunback,  5  S.  D. 
31,  58  N.  W.  4.  Any  Legal  Evidence — for  Court.  The  existence  of  any 
legal  evidence  upon  which  a  verdict  for  party  holding  burden  of  proof  can 
be  based,  is  a  question  for  the  court;  and  it  is  error  to  refuse  an  instruction 
asked  by  defendant,  after  close  of  testimony,  directing  a  verdict  in  his  fav- 
or, when  upon  the  evidence  a  contrary  verdict  must  be  set  aside.  Bowman 
V.  Eppinger,  1  N.  D.  21,  44  N.  W.  1000;  Thomp.  Trials,  section  2247-2249; 
Wagon  Co.  v.  Mathieson,  3  Dak  233,  14  N.  W.  107.  Must  be  Undisputed. 
When  the  court  directs  a  verdict  the  evidence  must  be  deemed  undisputed 
2i— TP 


18  CODE  OF  CIVIL  PROCEDURE. 

which  bears  in  favor  of  the  opposite  party,  and  it  must  be  given  the  most 
favorable  construction  it  will  bear,  and  all  reasonable  inferences  must  be 
given  him;  and  it  is  only  when  his  testimony  could  notlegally  sustain  a  verdict 
in  his  favor  that  a  contrary  verdict  can  be  directed.  Carson  et  al  v.  Gillitt 
et  al,  2  N.  D.  255,  50  N.  W.  710;  11  Am.  &  E.  Encyc.  of  Law,  245,  and  (rases 
cited.  Pemand.  In  an  action  for  value  of  wheat,  by  mortgagee  against 
one  claimed  to  have  converted  it,  a  warehouse  receipt  being  given  by  de- 
fendant to  mortgagor  upon  purchase  of  the  wheat,  and  no  evidence  of  de- 
mand on  defendant  therefor  being  given,  field,  error  to  refuse  to  direct  ver- 
dict for  defendant.  Sanford  v.  Bell  et  al,  2  N.  D.  6,  48  N.  W.  434;  Jones  on 
Chat.  Mort.  section  455;  Cadwell  v.  Pray,  41  Mich.  307,  2  N.  W.  52;  Adams 
V.  Wood,  51  Mich.  411,  16  N.  W.  788  Warranty.  In  an  action  for  balance 
of  purchase  price  of  a  steam  boiler,  involving  an  alleged  guaranty,  held, 
that  the  court  improperly  directed  a  verdict  for  plaintiff  upon  the  ground 
that  there  was  no  evidence  of  warranty.  Hazelton  Boiler  Co.  v.  Fargo  Gas 
&  E.  Co.  4  N.  D.  365,  61  N.  W.  151.  Waiver.  In  an  action  upon  a  note 
given  for  purchase  money  of  a  separator,  the  court  directed  a  verdict  for 
plaintiff,  moved  for  on  ground  that  defendants  had  waived  damages  or  for 
counterclaim  for  breach  of  warranty;  held,  that  no  other  question  than  that 
of  waiver  was  properly  considered  in  passing  upon  the  motion;  that  the  di- 
rection of  verdict  in  this  case  was  proper.  Minnesota  Thresher  Mfg.  Co.  v. 
Lincoln,  4  N.  D.  410,  61  N.  W.  145.  Bona  Fide  Purchaser.  In  a  suit  upon 
a  note  by  an  alleged  bona  fide  purchaser,  plaintiff  moved  for  direction  of 
verdict,  severally  and  distinctly  stating  the  grounds,  which  grounds  were 
invalid;  held,  no  error  to  deny  the  motion.  First  Natl.  Bank  of  Decorah  v. 
Laughlin  et  al,  4  N.  D.  391,  61  N.  W.  473;  Belcher  v.  Murphy,  (Cal.)  22 
Pac.  264;  Shain  v.  Forbes  (Cal.)  23  Pac.  198;  Coffey  v.   Greenfield,   62  Cal. 

602;    Haynes,  New  Tr.  &  App.    section   116;  Mattoon  v.  R'y.  Co S.  D. 

,  60  N.  W.  740.  Agency.  In  a  suit  for  damages  from  fire,  under  sec- 
tion 2392,  Comp.  Laws,  against  one  who  is  claimed  to  have  caused  the  fire 
to  be  set,  held,  that  the  court,  improperly  directed  a  verdict  for  defendant, 
that  the  question  of  whether  defendant  directed  his  employee  to  set  the  fire 
should  have  been  submitted  to  the|jury,  as  also  the  question  whether  the 
employee  was  acting  within  the  scope  of  his  authority.     Knight  v.  Towles, 

....  S.  D 62  N.  W.  964;  R.  R.  Co.  v.  Stout,  17  Wall.  657.     NegUgence. 

Where,  in  a  suit  for  damages  for  killing  livestock,  the  presumption  of  neg- 
ligence arising  from  killing  is  overcome  by  defendant's  evidence,  but  the 
rebuttal  evidence  raises  a  material  conflict  in  evidence  as  to  negligence  in 
fact,  held,  the  case  was  properly  submitted  to  jury,  and  motion  to  direct 
verdict  for  defendant  properly  denied.     Sheldon  et  al  v.  Chicago,   M.  &  St. 

P.  Ry.  Co S.  D.,  ....  62  N.  W.  955;  Lighthouse  v.  R.   Co.  3  S.  D.  518, 

54  N.  W.  320.  Harrison  v.  R.  Co S.  D 60  N.  W.  405.  Deed— Ten- 
der. Plaintiff  sued  on  notes  given  for  part  of  purchase  price  of  land,  he 
having  given  defendant  a  bond  for  deed;  plaintiff  quitclaimed  the  land  to 


OF  THE  CONDUCT  OF  THE  TRIAL.  19 

one  who  conveyed  to  defendant,  but  never  tendered  a  deed  under  his  bond 
to  defendant,  and  retained  the  notes;  held,   that  a  verdict  for  plaintiff  for 

value  of  the  notes  was  erroneously  directed.  Shelly  v.  Mikkelson, N.  D., 

....,  63N.  W.  210;  Sons  of  Temperance  v.  Brown,  9  Minn.  157  (Gil.  144); 
Ten  Eickv,  Simpson,  1  Sandf.  Ch.  246;  Mackreth  v.  Symmons,  15  Ves.  350; 
Champion  V.  Brown,  6  Johns.  Ch.  403;  2  Story  Eq.  Jur.  section  784;  Bur- 
well  V.  Jackson,  9  N,  Y.  535;  Wyvell  v.  Jones,  37  Minn.  68,  33  N.  W.  43; 
Bennett  v.  Phelps,  12  Minn.  326  (Gil.  216);  Taylor  v.  Read,  19  Minn.  372, 
(Gil.  317.)  Fire  Bisk.  In  a  suit  on  an  insurance  policy,  involving  repre- 
sentations as  to  the  fire  risk,  held,  under  the  facts  stated,  that  there  was  no 
disputed  question  of  fact  and  a  verdict  for  defendant  was  properly  directed. 

Fromherz  v.  Yankton  Fire  Ins.  Co S.  D ,  63  N.   W.   784.     Deceit. 

In  a  suit  to  recover  money  alleged  to  have  been  paid  by  plaintiff  through 
deceit,  in  a  transaction  involving  the  erection  of  houses,  held,  that  the  trans- 
action on  its  face  constituted  a  legal  fraud  upon  plaintiff,  and  that  the  court 
properly  directed  verdict  for  plaintiff  at  close  of  trial  upon  its  own  motion. 

Caldwell  V.  Maxfield,  et  al,   S.  D ,   64  N.   W.  166.     Conditional 

Notes.  In  an  action  on  promissory  notes,  defendant  alleging  they  were 
signed  conditionally  by  him  and  to  be  signed  by  another  before  taking  ef- 
fect, held,  upon  examination  of  evidence,  that  the  material  evidence  on  part 
of  defendant  was  undi&puted,  and  the  court  committed  no  error  in  directing 
verdict  for  defendant.  McCormick  Harvesting  Mach.  Co.  v.  Faulkner,  .... 
S.  D ,64  N.  W.  163;  Bates  v.  R.  Co.,  4  S.  D.  394,  57  N.  W.  72.  No  Be- 
quest. At  close  of  plaintiff's  evidence  defendant  moved  for  verdict  in  his 
favor,  which  was  denied,  and,  no  evidence  being  offered  by  defendant, 
verdict  was,  on  motion,  directed  for  plaintiff,  no  request  being  made  by  de- 
fendant to  submit  the  case  to  the  jury;  held,  no  error,  if  there  was  sufficient 
evidence  to  support  the  verdict,  which  there  was.  Yankton  Fire  Ins.  Co. 
v.  Freemt,  E.  &  M.  V.  Co.,  . .  S.  D.  . .,  64N.  W.  514;  Ormes  v.  Dauchy,  82  N. 
Y.  443;  Grigsby  v.  Telegraph  Co.  6  S.  D.  561, 59  N.  W.  734.  Covenant— Evic- 
tion. Covenants  of  general  warranty  or  for  quiet  enjoyment  are  prospective; 
and,  in  absence  of  fraud  or  anything  to  overcome  the  presumption  that  vendor 
is  able  to  respond  in  damages,  a  purchaser  of  realty  in  possession  under  deed 
with  such  covenants,  who  has  neither  been  evicted  nor  disturbed  in  poses- 
sion  or  enjoyment,  cannot  by  showing  mere  defect  of  title,  defeat  an  action 
for  balance  of  purchase  price;  and  it  was  not  error  to  withdraw  the  evi- 
dence from  the  jury  and  direct  verdict  for  plaintiff.     Price  v.  Hubbard, 

S.  D 65  N.  W.  436;  Morgan  v.  Henderson  (Wash.  T.)  8  Pac.  491;  Hef- 

flin  V.  Phillips,  (Ala.)  11  South.  729;  Wilson  v.  Irish  (Iowa)  17  N.  W.  511; 
Hamilton  v.  Lusk  (Ga.)  15  S.  E.  10;  Cheney  v.  Straube,  [Neb.]  53  N.  W.  479; 
Fitzhugh  V.  Croghan,  19  Am.  Dec.  139;  Ferriss  v.  Harshea,  17  Am.  Dec.  782. 
Partners — Complaint.  In  an  action  against  partners  on  a  note,  the  omis- 
sion from  title  of  complaint  of  the  statement  that  defendants  are  p'artners 
does  not  make  it  bad  on  general  demurrer;  and  the  trial  court  erroneously 


20  CODE  OF  CIVIL  PROCEDURE. 

directed  verdict  in  favor  of  defendants.     Van  Brunt  &  Davis  Co.   v.   Harri- 

gan,  et  al, S.  D 65  N.  W.  421,  Bliss  Code  PI.  section  145.     Riding 

in  Caboose.  In  an  action  for  personal  injury  to  one  riding  in  caboose  with 
immigrant  movables,  under  a  shipping  contract,  held,  under  the  evidence, 
that  deceased  was  guilty  of  contributory  negligence  sufficient  to  defeat  a 
recovery,  and  the  trial  court  should   have  sustained   a  motion   to  direct  a 

verdict  against  plaintiff.     Humphreus  v.  Fremont,  E.  &  M.  V.  R.  Co., , 

S.  D.,  65  N.  W.  466.  Payment.  In  a  suit  for  a  balance  due  on  settlement, 
certain  notes  being  turned  over  to  plaintiff  which  were  to  be  accepted  in 
payment  of  the  balance  if  approved  by  plaintiff,  held,  that  plaintiff  having 
failed  for  over  forty  days  to  notify  defendant  that  it  did  not  approve  them, 
it  was  a  question  for  the  jury  whether  it  had  not  waited  beyond  a  reason- 
able time  to  manifest  disapproval  and  were  to  be  deemed  to  have  accepted 
them;  and  a  motion  to  direct  a  verdict  for  plaintiff  was  properly  denied. 

Acme  Harvester  Co.  v.  Axtell,  . . . .  S.  D.,    65  N.  W.  680;     19  Encyc.  of 

Law,  642,  note  2;  Washington  v.  Johnson,  7  Humph.  468.  Guaranty.  In 
an  action  against  guarantors  of  an  agency  contract  for  selling  machinery, 
held,  under  the  evidence,  that  the  trial  court  rightly  directed  verdict  for 

plaintiff.     William    Deering  &  Co.  v.  Russell  et  al, S.  D 65  N.  W. 

691;  Penny  v.  Mfg.  Co.  80,  111.  244;  Sigourney  v.  Wetherell,  6  Mete.  Mass. 
553;  Forbes  v.  Rowe,  48  Conn.  413;  Bingham  v.  Mears,  4  N.  D.  437,  61  N.  W. 
808.  Surety  Extension.  In  an  action  on  a  note,  one  of  the  defendants  de- 
fended as  surety,  claiming  time  for  payment  had  been  extended  without  his 
consent,  by  memorandum  on  the  note;  held,  upon  the  question  whether  the 
extension  contract  was  upon  good  consideration,  the  facts  should  have  been 
submitted  to  the  jury,  and  the  court  erred  in  directing   verdict  for  plaintiff. 

Corbett  et  al  v.  Clough  et  al S.  D ,  65  N.  W.   1074.     Sale.     In  an 

action  for  balance  due  plaintiff  from  defendant  on  merchandise  alleged  to 
have  been  sold,  where  plaintiff  had  a  small  stock  of  goods  which  the  evi- 
dence tended  to  prove  defendant  consented  to  take  as  they  might  be  needed 
in  his  store,  Jield,  that  the  court  properly  instructed  the  jury,  that  if  the 
plaintiff  took  the  goods  and  placed  them  in  the  stock  with  defendant's  goods 
and  with  his  knowledge,  she  is  entitled  to  a  verdict  for  the  reasonable  value 
thereof;  and  an  instruction  that  if  defendant  did  not  expressly  authorize 
her  to  charge  the  goods  to  him  the  verdict  must  be  for  the  defendant,  was 
properly  refused.  Stewart  v.  Gilruth,  . ..  S.  D.  . . .  ,  65  N.  W.  1065. 
Claim  and  Delivery.  In  an  action  of  claim  and  delivery  for  grain,  held,  un- 
der the  tacts  in  evidence,  that  the  court  properly  directed  a  verdict  for  de- 
fendants as  to  ownership,  after  striking  out  all  evidence  of  plaintiffs  owner- 
ship; held,  also,  that  the  question  of  value  was  properly  submitted  to  the 
jury.  Haveron  v,  Anderson  et  al,  3  N.  D.  540,  58  N.  W.  340.  In  an  action 
for  possession  of  property  covered  by  mortgage,  lield,  that  upon  the  ques- 
tion of  identity  of  the  engine  mortgaged,  the  court  properly  directed  a  ver- 
dict for  defendant  upon  the  theory  that  there  was  no  evidence  showing  the 


OF  THE  CONDUCT  OF  THE  TRIAL.  21 

• — — 

mortgage  covered  the  engine.  Russell  &  Co.  v.  Amundson,  4  N.  D.  112,  59 
N.  W.  477.  Negligence.  In  an  action  for  negligent  killing  of  an  animal, 
lield,  under  the  facta  stated,  that  the  statutory  presumption  of  negligence 
was  overcome,  and  the  court  erred  in  refusing  to  direct  a  verdict  for  de- 
fendant. Hodgins  v.  Minpls.,  St.  P.  &  S.  Ste.  M.  R.  Co.,  3  N.  D.  382,  56, 
N.  W.  139;  Smith  v.  R.  Co.  3  N.  D.  17,  53  N.  W.  173. 

5.   Negligence. 

Question  for  Jury.  It  was  not  error  for  the  court  to  refuse  to  in- 
struct the  jury  upon  the  question  of  negligence,  in  an  action  for  damages  by 
fire,  in  effect  ignoring  the  element  of  due  care  by  defendant.  Gram.  v. 
Northern  Pac.  R.  Co.  1  N.  D.  252,  46  N.  W.  972.  The  mere  fact  that  the 
fire  in  question  was  started  118  feet  from  the  track  is  not  sufficient  in  itself 
to  warrant  submission  of  the  question  of  negligence  to  the  jury.  Smith  v. 
Northern  Pac.  R.  Co.  3  N.  D.  17,  53  N.  W.  173;  R.  R.  Co.  v.  McClelland,  42 
III.  355.  In  a  suit  for  negligently  killing  an  animal  at  a  private  railroad 
crossing,  held,  that  the  question  of  negligence  is  usually  one  for  the  jury, 
and  that  that  question  was  properly  submitted  to  the  jury  in  this  case. 
Bishop  v.  Chicago,  M.  &  S.  P.  Ry.  Co.  4  N.  D.  536,  62  N.  W.  605.  In  an 
action  against  a  city  for  damages  resulting  from  injury  caused  by  negli- 
gence of  defendant  in  permitting  an  obstruction  to  stand  upon  its  street, 
held,  that  a  court  cannot  say  as  a  matter  of  law  that  such  obstruction  (a 
steam  thresher)  is  not  calculated  to  frighten  horses  of  ordinary  gentleness; 

that  that  is  a  question  for  the  jury.     Ouverson  v.  City  of  Grafton,    N. 

D ,    65  N.    W.   676.     Evidence  of    Negligence— Question    of    Law. 

Whether  evidence  tending  to  prove  the  setting  of  two  fires  by  the 
engine  causing  the  destruction  of  plaintiff's  propertv  is  admissible  as 
tending  to  prove  negligence  of  defendant,  is  a  question  of  law  for  the 
court;  and  the  giving  of  an  instruction  accordingly  is  proper,  and  the 
repetition  of  it  in  another  instruction  asked  by  plaintiff,  does  not 
constitute  error.  Smith  v.  Chicago,  Milwaukee  &  St.  Paul  Ry.  Co,  4 
S.  D.,  71,  55  N.  W.  717.  Contributory  Negligence.  Ii  is  reversible  er- 
ror to  charge  the  jury  that  liability  of  defendant  depended  solely 
upon  freedom  of  plaintiff'  from  contributory  negligence,  defendant's  negli- 
gence not  being  established  by  evidence  as  matter  of  law.  Bennett  v. 
Northern  Pac.  R.  Co.  4.  N.  D.  348,  61  N.  W.  18.  Where  the  facts  or  condi- 
tions which  increase  the  ordinary  hazard  of  a  servant  are  so  open  and  ob- 
vious as  to  be  plainly  apparent  to  and  understood  by  the  servant,  without 
effort  on  his  part,  he  is  bound  to  see  and  understand;  and  if  he  continue 
work  without  objection,  he  will  be  held  to  have  assumed  such  risk;  and  the 
court's  instruction  in  this  case,  to  that  effect,  was  proper.     Carlson  v.  Sioux 

Falls  Water  Co,  (on  rehearing)   ....  S.  D ,  65  N.  W.  419;  Money  v.  Coal 

Co.,  55  Iowa,  671,  8  N.  W.  652;  Anderson  v.  Winston,  31  Fed.  528;  Water 
Supply  Co.  V.  White,  124  Ind.  376,  24  N.  E.  747.     Proximate  Cause— Ques- 


22  CODE  OF  CIVIL  PROCEDURE. 

_ , — — 

tion  for  Jury.  In  an  action  for  damages  by  fire,  held,  under  the  facts,  that 
whether  the  fire  in  question  was  the  proximate  cause  of  the  injury,  was  a 
question  for  the  jury,  and  the  court  did  not  error  in  submitting  it  with  in- 
structions as  to  law.  Gram  v.  Northern  Pac.  R.  Co.  1  N.  D.  252,46  N.  W.  972; 
Clemens  v.  R.  Co.  53  Mo.  366;  Kellogg  v.  R.  Co.,  26  Wis.  223;  Higgins  v. 
Dewey,  107  Mass.  494.  Contributory  Neg'Iig'ence — Burden  of  Proof.  The 
burden  of  showing  contributory  negligence  rests  upon  defendant,  and  un- 
less such  negligence  conclusively  appears  from  plaintiff's  testimony,  the 
court  cannot  take  the  case  from   the  jury.     Ouverman  v.   City  of  Grafton, 

. . . .  N.  D ,  65  N.  W.  676;  Gram  v.  Railroad  Co.  1  N.  D.,  252,  46  N.  W. 

972,  and  cases  cited. 

6.  Damages — Measure  of. 

Rule  Of.  In  an  action  for  balance  of  purchase  money,  the  trial 
court  gave  the  jury  two  different  rules  as  to  measure  of  damages;  held, 
the  proper  rule  is,  the  difference  between  the  value  of  what  the  ven- 
dee would  have  obtained  had  the  representations  been  true  and  the  value  of 
what  he  actually  receives.  Fargo  Gas  &  C.  Co.  v.  Fargo  G.  &  E.  Co.,  4  N. 
D.  219,  59  N.  W.  1066,  and  many  cases  there  cited  (cited  more  at  large  un- 
der section  5088,  Comp.  Laws,  subd.  7.)  Interest.  In  an  action  for  destruc- 
tion of  or  damages  to  property  through  negligence,  an  instruction  requiring 
the  jury  to  compute  interest  endamages,  if  any,  is  erroneous.  Uhe  v.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.,  4  S.  D.  505,  57  N.  W.  484;  Garrett  v.  R.  R.  Co., 
36  Iowa,  121.  Personal  Injuries.  It  is  error  to  instruct  the  jury,  in  an  ac- 
tion for  personal  injuries,  that  they  may  take  into  account,  in  estimating 
damages,  the  effect  of  the  injury  upon  plaintiff's  mental  powers,  no  claim 
being  made  in  the  complaint  or  evidence  upon  that  head.  Comaskey  v. 
Northern  Pac.  R.  Co.,  3  N.  D.  276,  55  N.  W.  732. 

7.  Other  Cases. 

Ultra  Vires — National  Bank.  Want  of  authority  in  a  national 
bank  to  purchase  a  negotiable  note  cannot  be  used  bj'  the  maker  as  a  de- 
fense in  an  action  upon  it;  and  the  court,  under  the  evidence,  properly 
directed  a  verdict  for  plaintiff.  First  Ntl.  Bank  of  Pierre  v.  Smith  et  al  .  .S. 

D 65  N.  W.  437;  Bank  v.  Mathews,  98  U.  S.  621;  Bank  v.  Whitney,  103 

U.  S.  99;  Bank  v.  Hanson,  33  Minn.  40,  21  N.  W.  849;  Bank  v.  Butler,  157 
Mass.  548,  32  N.  E.  909;  16  Enc.  of  Law,  167.  Malicious  Prosecution— Ad- 
vice— Probable  Cause.  To  relieve  a  defendant  from  liability  for  malicious 
prosecution,  on  the  ground  that  he  acted  on  advice  of  counsel,  he  must 
have  made  a  full  statement  of  all  facts  known  to  him  relevant  to  the  prose- 
cution, and  have  received  advice  thereon  to  institute  the  prosecution, 
and  must  have  acted  on  such  advice  in  good  faith,  believing  plaintiff 
to  be  guilty.  Jackson  v.  Bell,  5S.  D.  257,  58  N.  W.  671;  Manning  v.  Finn, 
(Neb.)  37  N.  W.  314;  Donnelly  v.  Daggett,  (Mass.)  14  N.  E.  161;  and  the 
question  of  probable  cause  is  a  mixed  one  of  law  and  fact,  to  be  considered 


OF  THE  CONDUCT  OF  THE  TRIAL.  23 

by  the  jury  under  instructions  as  to  what  facts,  if  proved,  constitute  proba- 
ble cause.  Id.;  Acker  v.  Gundy  (Pa.  Sup.)  12  Atl.  595;  Stewart  v.  Sonne- 
born,  98  U.  S.  187;  Walker  v.  Camp,  (Iowa)  27  N.  W.  800;  Murry  v.  Long,  1 
Wend.  140;  and  these  questions  were  properly  submitted  to  the  jury.  Id. 
Falsus  in  Uno,  Falsus  in  Omnibus.  It  is  error  to  instruct  a  jury  that,  if 
they  believe  a  witness  has  testified  falsely  to  any  material  fact  they  have  a 
right  to  wholly  disregard  his  testimony,  except  so  far  as  corroborated  by 
other  credible  evidence;  they  should  be  told  that  this  is  the  rule  only  in 
cases  where  he  has  willfully  or  knowingly  or  intentionally  testified  falsely. 

McPherson   v.  Jones,  ....  N.  D ,  65  N.  W.  685;  Gold  Co.  v.  Skillicorn, 

(N.  M.)  41  Pac.  533;  Linck  v.  Whipple,  31  111.  App.  155;  Follettv.  Territory, 
(Ariz.)  33  Pac.  869;  Barney  v.  Dudley,  (Kan.  Sup.)  19  Pac.  550;  2  Thomp. 
Tr.  section  2432  and  cases  cited;  People  v.  Sprague,  53  Cal.  494;  Pope  v. 
Dodson,  58  111.  365.  Bastardy— Preponderance  Suflicient.  In  a  prosecu- 
tion under  the  bastardy  act,  chap.  24,  Laws  1893,  the  court  properly  in- 
structed the  jury  that  a  preponderence  of  the  evidence  on  the  part  of  plain- 
tiff will  sustain  a  recovery.      State  V.  Bunker,   S.  D ,65  N.  W.  33; 

Altschuler  v.  Algaza  (Neb.)  21  N.  W.  401;  Lewis  v.  People,  82111.104; 
Strickler  v.  Grass  (Neb.)  49  N.  W.  804;  Harper  v.  State,  101  Ind.  109;  State 
V.  Roroaine,  58  Iowa  46,  11  N.  W.  721;  Robbins  v.  Smith  47  Conn.  182. 

ORDER  OF  READING— JURY  TAKE-EXCEPTIONS.  §  5049  Comp. 
Laws.  All  instructions  given  by  the  judge  shall  be  read  to  the 
jury  in  the  following  order: 

1.  Defendant's  instructions  by  defendant's  counsel. 

2.  Plaintiff's  instructions  by  plaintiff's  counsel. 

3.  Instructions  given  by  the  judge,  of  his  own  motion,  if 
any,  by  the  judge  giving  the  same;  and  all  instructions  so 
given  and  read  shall  be  taken  by  the  jury  in  their  retirement, 
and  returned  into  court  with  their  verdict.  Exceptions  to  the 
giving  or  refusing  any  instruction,  or  to  its  modification  or 
change,  may  be  taken  at  any  time  before  the  entry  of  final  judg- 
ment in  the  case. 

SAME.  §  5433  Rev.  Codes  N.  D.  All  instructions  given  to 
the  jury  must  be  read  to  them  by  the  court  without  disclosing 
to  them  whether  such  instructions  were  requested  or  not  and 
must  be  signed  by  the  judge  and  delivered  to  the  jury  and  shall 
be  taken  by  the  jury  in  their  retirement  and  returned  with 
their  verdict  into  court,  and  upon  the  close  of  the  trial  all  in- 
structions given  or  refused  must  be  filed  with  the  clerk  and 


^4  CODE  OF  CIVIL  PROCEDURE. 

either  party  may  within  twenty  days  from  the  date  of  such  fil- 
ing file  with  the  clerk  exceptions  to  any  such  instructions  or 
refusals  to  instruct  and  the  same  shall  thereupon  be  deemed 
duly  excepted  to;  provided,  that  with  the  consent  of  both  par- 
ties entered  in  the  minutes  the  court  may  instruct  the  jury 
orally,  in  which  case  said  oral  instructions  shall  be  taken  down 
by  the  official  stenographer  and  written  out  at  length  and  the 
shorthand  notes"  thereof  together  with  such  instructions  so 
written  out  shall  be  filed  in  the  case  with  the  clerk,  and  either 
party  may  except  to  any  of  such  instructions  within  twenty 
days  after  the  date  of  such  filing  as  heinbefore  provided;  pro- 
vided, that  the  official  stenographer  shall  receive  for  writing 
out  such  instructions  the  same  fees  as  for  making  transcripts; 
and  provided,  further,  that  when  oral  instructions  are  given, 
the  jury  shall  not  take  the  charge  in  their  retirement,  unless  so 
ordered  by  the  court.     (Laws  1893,  sec.  1,  chap.  84.) 

Sec.  249  C.  C.  P.;  Levisee  p.  74.  Consult  decisions  under  preceding 
section. 

This  Section  Anomalous — Exceptions,  When  Taken.  In  the  case 
of  St.  Croix  Lumber  Co,  v.  Pennington,  2  Dak.  467,  11  N.  W.  497,  the  court 
say  relative  to  this  section  of  the  code:  "As  to  this  section,  and  section 
248  (C.  C.  P.)  it  may  be  remarked  that  they  are  anomalous  in  our  system  of 
practice.  They  were  not  reported  by  the  codifiers,  but  were  mostly  taken 
from  the  practice  act  of  Illinois.  See  Rev.  St,  of  111.  (1874,)  p.  781.  Noth- 
ing like  them  can  be  found  in  our  old  Codes,  or  in  those  of  New  York 
and  California.  By  the  organic  law  (section  1868  of  the  Rev.  St.  U.  S.)  our 
district  courts  are  declared  to  have  common-law  jurisdiction;  and  are  not 
the  powers  of  the  judge,  as  defined  by  the  common  law,  largely  trenched 
upon  by  these  sections  ?  On  this  point  see  Model  v.  Burrows,  1  Otto,  426; 
Houston  V.  Williams,  13  Cal.  24.  However  this  maj'  be,  taking  the  two  sec- 
tipns  as  they  stand,  the  instructions  referred  to  are  of  two  classes:  First, 
those  given  by  the  judge  of  his  own  motion;  secondly,  those  specifically  asked 
for  by  counsel.  It  would  appear,  therefore,  that  exceptions  to  the  former 
must  be  taken  at  the  time,  so  that,  the  attention  of  the  court  being  drawn 
to  the  points,  the  judge  may  have  an  opportunity  to  correct,  if  necessary, 
any  inadvertance  or  mistake  before  the  jury  retires.  As  to  the  latter,  the 
same  reason  does  not  apply,  for  attention  is  beforehand  called  by  the  speci- 
fic requests,  and  a  reasonable  opportunity  for  answering  them  is  afforded. 
It  does  not,  consequently  appear  unreasonable  that  so  far  as  the  responses  of  the 
judge  to  such  requests  are  concerned,  exceptions  may  be  taken  at  any  time  be- 
fore the  entry  of  final  judgment."    Any  Time  Before  Judgment — Origin  of 


OF  THE  CONDUCT  OP  THE  TRIAL.  25 

This  Section.  Under  section  5049 Comp.  Laws,  "Exceptions  to  the  giving  or 
refusing  any  instruction,  or  to  its  modification  or  change,  may  be  taken  at 
any  time  before  the  entry  of  final  judgment  in  the  case;"  under  this  section 
there  is  no  distinction,  in  respect  to  the  time  within  which  exceptions  may 
be  taken,  between  instructions  given  at  the  request  of  counsel  and  instruc- 
tions given  by  the  judge  of  his  own  motion.  (Cheatam  v.  Wilber.  1  Dak. 
335,  46  N.  W.  580,  Boss  v.  R.  R.  Co.,  2  N.  D.  128,  49  N.  W.  655,  and  St. 
Croix  Lum.  Co.  v.  Pennington,  2  Dak,  467,  11  N.  W.  497,  explained.)  Uhe  v. 
Chi.  Mil.  &  St.  P.  Ry.  Co.,  (on  rehearing),  4  S.  D.  505,  57  N.  W.  484.  In 
construing  section  5049  Comp.  Laws,  Kellam,  J.  in  the  case  last  cited  (p  488) 
says:  "Returning  to  section  5049,  we  do  not  see  that  the  further  expres- 
sion, or  to  its  modification  or  change,  is  applicable  only  to  the  instructions 
asked  for  by  counsel.  The  modification  or  change  which  may  thus  be  ex- 
cepted to  is  the  modification  or  change  referred  to  and  forbidden  in  respect 
to  either  class  of  instructions  in  the  preceding  section.  These  two  sections 
are  probably  the  result  Of  an  attempt  to  improve  upon  sections  53  and  54, 
chap.  110,  Rev.  St.  111.  1885.  The  first  of  these  sections  (53)  simply  pro- 
hibits oral  instructions.  The  second  [54]  requires  the  judge  to  mark  'Re- 
fused' on  such  rejected  instructions  as  he  cannot  give,  and  'Given'  on  such 
as  he  does  give,  and  forbids  any  modification  or  explanation  of  an  instruc- 
tion given,  except  in  writing.  Then,  in  a  new  paragraph  added  in  1872,  it 
provided  that  'exceptions  to  the  giving  or  refusing  any  instructions  may  be 
entered  any  time  before  the  entry  of  final  judgment  in  the  case.'  Here  the 
same  expression  is  used  as  in  our  law,  'exceptions  to  the  giving  or  refusing 
any  instruction,'  etc.;  but  we  find  no  case  from  that  state  in  which  any  dis- 
tinction is  made  between  instructions  given  at  the  request  of  the  counsel 
and  those  given  by  the  judge  of  his  own  motion.  They  are  treated  precise- 
ly alike,  and  both  are  subject  to  the  same  rule.  The  Illinois  cases,  as  we 
should  expect  under  this  law,  all  hold  that  exceptions  to  instructions  must 
be  taken  at  the  trial,  for  that  is  without  doubt  the  general  rule,  and  there 
is  nothing  in  the  Illinois  law  to  change;  and  it  is  the  rule  in  this  jurisdic- 
tion, unless  changed  by  statute.  Several  of  these  Illinois  cases,  however, 
recognize  a  diiTerence  between  tailing  an  exception — that  is,  making  it 
known  to  the  court;  noting  it — and  writing  it  out  in  form  for  entry  of  rec- 
ord. The  taking  of  it,  under  their  decisions,  must  be  at  the  time,  but  it  may 
be  entered  after  the  trial.  See  the  recent  case  of  England  v.  Vandermark, 
[111.  Sup.]  35  N.  E.  465,  where  the  object  and  form  of  this  provision  are 
explained.  *  *  *  Our  statute  extends,  not  the  time  for  entering  excep- 
tions to  instructions,  but  the  time  for  taking  them.  The  Illinois  provision 
was  thus  changed  when  adopted  by  our  legislature,  and  we  do  not  feel  au- 
thorized to  say  that  it  was  not  done  deliberately,  and  for  the  very  purpose 
of  effecting  the  change  indicated."    Exceptions — Impolicy  of  Statute.     In 

the  case  of  McPherrin  v.  Jones, N.  D ,  65  N.  W.  685,  Corliss,  J., 

in  the  course  of  deciding  the  point  that  it  is  not  necessary,  in  order  to  have 


26  Code  of  civil  procedure. 

error  in  the  charge  of  the  court  to  the  jury  reviewed  on  appeal,  to  move 
for  a  new  trial,  and  in  commenting  upon  section  5433  Rev,  Codes  N.  D. 
[which  is  a  modification  of  section  5049  Comp  Laws.],  as  amended  by  laws  of 
1893,  N.  D.  section  1  chap.  84,  as  amended  by  Revision  Commissioners,  says: 
"We  think  it  is  due  to  the  learned  judge  who  tried  the  case  to  say  that  the 
error  committed  was  undoubtedly  committed  through  inadvertance.  *  * 
*  *  This  case  illustrates  the  impolicy  of  the  statute  allowing  the  party 
twenty  days  in  which  to  file  exceptions  to  the  instructions  of  the  district 
court  to  a  jury.  Laws  1893,  chap.  84,  section  1.  Where  a  charge  is 
oral,  as  was  the  charge  in  this  case,  it  is  unfair  to  both  court  and  opposing 
counsel  that  a  party  should  be  allowed  to  except  to  instructions,  the  cor- 
rectness of  which  he  did  not  challenge  at  the  time,  at  a  subsequent  time, 
when  it  is  too  late  to  rectify  the  error  without  granting  a  new  trial.  It  is 
due  to  the  learned  trial  judge  to  state  also  that  he  was  given  no  opportunity 
to  correct  the  error  himself  by  granting  a  new  trial,  as  no  such  motion  was 
made."  The  case  was  reversed  for  error  in  the  charge  in  question,  upon  the 
record  as  above  stated.  Exceptions— Stipulation.  In  the  case  of  Boss  v. 
Northern  Pac.  Ry.  Co.,  2  N.  D.  128,  49  N.  W.  655,  it  was  agreed  by  counsel, 
at  the  close  of  the  instructions,  "that  at  any  time  within  which  a  stay  was 
granted,  either  party  might  take  his  or  its  exceptions  to  the  charge,  or  any 
part  thereof."  Within  the  life  of  this  stay  defendant  took  exception  to  the 
giving  of  oral  instructions,  but  not  to  the  matter  of  the  instructions  so 
given.  Held,  that  the  agreement  could  cover  exceptions  to  the  matter  of 
the  charge  only.  Error  Must  Appear..  There  being  nothing  in  the  rec- 
ord warranting  the  court  in  saying  that  ihe  instructions  in  this  case  were 
not  given  to  the  jury  explicitly,  as  pointed  out  by  the  statute,  and  in  the  or- 
der contemplated  by  the  statute,  no  error  appears  as  to  the  manner  and  reg- 
ularity of  giving  instructions  to  the  jury.  Uhe  v.  Chi.,  Mil.  &  St.  P.  Ry. 
Co.,  3.  S.  D.  563,  54  N.  W.  601. 

I/IEW  BY  JURY.  Sec.  5050  Comp,  Laws;  §  5434  Rev. 
Codes  N.  D.  When,  in  the  opinion  of  the  court,  it  is  proper 
for  the  jury  to  have  a  view  of  the  property  which  is  the  subject 
of  litigation,  or  of  the  place  in  which  any  material  fact  occur- 
red, it  may  order  them  to  be  conducted  in  a  body,  under  the 
charge  of  an  officer,  to  the  place,  which  shall  be  shown  to  them 
by  some  person  appointed  by  the  court  for  that  purpose. 
While  the  jury  are  thus  absent,  no  person,  other  than  the  person 
so  appointed,  shall  speak  to  them  on  any  subject  connected 
with  the  trial. 

Sec.  250,  C.  C.  P.;  Levisee  p.  75;  Harst  Pr.  Deer.  Code  g  610. 
Consult  decisions  under  the  next  three  sections. 


OF  THE  CONDUCT  OF  THE  TRIAL.  27 

JURY  ADMONISHED.  Sec.  5051  Comp.  Laws;  §5435  Rev. 
Codes  N.  D.  If  the  jury  are  permitted  to  separate,  either  dur- 
ing- the  trial  or  after  the  cause  is  submitted  to  them,  they  shall 
be  admonished  by  the  court  that  is  their  duty  not  to  converse 
with,  or  suffer  themselves  to  be  addressed  by  any  other  person 
on  any  subject  of  the  trial,  and  it  is  their  duty  not  to  form  or 
express  an  opinion  thereon  until  the  case  is  finally  submitted 
to  them. 

Sec.  251  C.  C.  P.;  Levisee  p.  75;  Harst.  Pr.  Deer.  Code  §  611. 

Consult  decisions  under  next  two  sections. 

JError  Without  Prejudice.  Where,  upon  undisputed  facts,  no  other 
verdict  than  the  one  returned  could  have  been  properly  rendered,  this  court 
will  not  examine  an  alleged  error  in  allowing  the  jury  to  separate  tempor- 
arily without  being  admonished  by  the  trial  court  not  to  converse  among 
themselves,  or  with  others,  upon  the  subject  of  the  trial,  as  it  is  evident 
that  no  prejudice  resulted  therefrom.  Kirby  v.  Western  Union  Tel.  Co.,  4 
S.  D.  105,  55  N.  W.  759. 

PAPERS  TAKEN  BY  JURY.  Sec.  5052  Comp.  Laws;  §  5436 
Rev.  Codes  N.  D.  Upon  retiring  for  deliberation,  the  jury 
may  take  with  them  all  papers  which  have  been  received  as 
evidence  in  the  cause,  except  depositions  or  copies  of  such 
papers  as  ought  not,  in  the  opinion  of  the  court,  to  be  taken 
from  the  person  having  them  in  possession;  and  they  may  also 
take  with  them  notes  of  the  testimony  or  other  proceedings  on 
the  trial  taken  by  themselves,  or  any  of  them,  but  none  taken 
by  any  other  person. 

Sec.  252  C.  C.  P.;  Levisee  p.  75;  Harst  Pr.  Deer.  Code  ?  612. 

Consult  decisions  under  two  preceding  sections  and  the  following  sec- 
tion. 

Oral  Instructions — Waiver.  Where  instructions  are  given  orally, 
and  taken  down  in  short-hand  by  the  court  stenographer,  but  are  not  taken 
by  the  jury  in  their  retirement,  and  no  objection  is  made  at  the  time,  a 
right  to  except  thereto  is  waived.  Stamm  v  Coates,  4  Dak.  69,  22  N.  W. 
593. 

As  to  what  papers  jurors  in  criminal  cases  may  take  with  them  to  the 
jury  room,  see  I  7411  Comp.  Laws,  §  8224,  Rev.  Codes,  N.  D. 

RETIREMENT— CONDUCT  OF  JURY  Sec.  5053  Comp.  Laws; 
§  5437  Rev.  Codes  N.  D.  When  the  case  is  finally  submitted  to 
the  jury  they  may  decide  in  court  or  retire  for  deliberation.     If 


28  CODE  OF  CIVIL  PROCEDURE. 

they  retire,  they  must  be  kept  together  in  some  convenient 
place,  under  charge  of  an  officer,  until  they  agree  upon  a  ver- 
dict or  are  discharged  by  the  court.  Unless  by  order  of  the 
court,  the  officer  having  them  under  his  charge  must  not  suffer 
any  communication  to  be  made  to  them,  or  make  any  himself, 
except  to  ask  them  if  they  have  agreed  upon  a  verdict;  and  he 
must  not,  before  their  verdict  is  rendered,  communicate  to  any 
person  the  state  of  their  deliberations,  or  the  verdict  agreed 
upon. 

Sec.  253  C.  C.  P.;  Levisee  p.  75;  Harst  Pr.  Deer.  Code  |  613, 

DISAGREEMENT— INFORMATION.  Sec.  5054  Comp.  Laws; 
§  5438  Rev.  Codes  N.  D.  After  the  jury  have  retired  for  de- 
liberation, if  there  be  a  disagreement  between  them  as  to  any 
part  of  the  testimony,  or  if  they  desire  to  be  informed  of  any 
point  of  law  arising  in  the  cas3,  they  may  require  the  officer  to 
conduct  them  into  court.  Upon  their  being  brought  into 
court,  the  information  required  must  be  given  in  the  presence 
of,  or  after  notice  to,  the  parties  or  counsel. 

Sec.  254  C.  C.  P.;  Levisee  p.  76;  Harst  Pr.  Deer.  Code  §  614, 

SICK  JUROR— NEW  JURY.  Sec.  5055  Comp.  Laws;  §  5439 
Rev.  Codes  N.  D.  If,  after  the  impaneling  of  a  jury,  and  be- 
fore a  verdict,  a  juror  become  sick,  so  as  to  be  unable  to  per- 
form his  duty,  the  court  may  order  him  to  be  discharged.  In 
that  case  the  trial  may  proceed  with  the  other  jurors,  or  an- 
other jury  maybe  sworn,  and  the  trial  begin  anew;  or  the  jury 
may  be  discharged,  and  a  new  jury  then  or  afterwards  impan- 
eled. 

Sec.  255  C.  C.  P.;  Levisee  p.  76;  Harst  Pr.  Deer.  Code  §  615. 

PREVENTED  VERDICT— NEW  TRIAL.  Sec.  5056  Comp.  Laws; 
Sec.  5440  Rev.  Codes  N.  D.  In  all  cases  where  the  jury  are 
discharged,  or  prevented  from  giving  a  verdict,  by  reason  of 
accident  or  other  cause,  during  the  progress  of  the  trial,  or 
after  the  cause  is  submitted  to  them,  the  action  may  be  again 
tried  immediately,  or  at  a  future  time,  as  the  court  may  di- 
rect. 

Sec.  256  C.  C.  P.;  Levisee,  p.  76;  Harst.  Pr.  Deer.  Code  g  617. 


OF  THE  CONDUCT  OF  THE  TRIAL.  29 

SEALED  VERDIOT-ADJOURNMENT.  Sec.  5057  Comp.  Laws; 
§  5441  Rev.  Codes  N.  D.  While  the  jury  are  absent,  the  court 
may  adjourn  from  time  to  time,  in  respect  to  other  business; 
but  it  is  nevertheless  open  for  every  purpose  connected  with 
the  cause  submitted  to  the  jury,  until  a  verdict  is  rendered  or 
the  jury  discharged.  The  court  may  direct  the  jury  to  bring 
in  a  sealed  verdict,  at  the  opening  of  the  court,  in  case  of  an 
agreement  during  a  recess  or  adJQurnment  for  the  day.  A  fin- 
al adjournment  of  the  court  for  the  term  discharges  the  jury. 

Sec.  257  C.  C.  P.;  Levisee  p.  76;  Harst.  Pr.,  Deer.  Code,  'i  616. 

Verdict  Delivered  to  Judge — Irregular.  After  the  cause  was  submit- 
ted and  while  same  was  being  considered  in  a  jury  room  adjacent  to  the 
court  building,  court  took  a  recess  until  the  following  day,  and  thereupon 
the  clerk's  office  and  the  cou"!  room  were  closed.  The  jury,  in  charge  of  a 
bailiff,  and  in  the  room  to  which  it  was  assigned,  continued  its  deliberations 
until  two  o'clock  on  the  following  morning,  when,  at  the  request  of  the  jury, 
the  judge  was  notified  that  a  verdict  had  been  agreed  upon.  The  judge 
immediately  went  from  his  home  to  the  jury  room,  and  in  absence  of  the 
clerk  and  other  officers  of  court  and  of  all  the  attorneys  and  parties  to  the 
suit,  asked  the  jury  if  they  had  agreed  upon  a  verdict.  The  foreman  an- 
swered affirmatively,  and  delivered  the  verdict  to  the  judge,  who  asked  him 
if  it  was  his  verdict.  Being  answered  in  the  affirmative,  the  court  ad- 
dressed the  jury  as  follows:  "So  say  you  all,  gentlemen  of  the  jury  V"  The 
unanimous  answer  was,  "We  do,"  or  something  to  that  effect.  The  judge 
then  discharged  the  jury,  and  allowed  the  members  thereof  to  separate. 
The  verdict,  which  was  for  the  defendant,  was  kept  by  the  judge  until 
court  opened  at  nine  o'clock  A.  M.  of  that  day,  when  in  the  absence  of  the 
jury  he  delivered  it  to  the  clerk,  who  thereafter  recorded  it  upon  the  min- 
utes of  the  court,  plaintiff  thereupon  excepting  To  the  verdict  and  the  man- 
ner in  which  it  had  been  received.  Held,  that  such  verdict  was  fatally  ir- 
regular, and  insufficient  to  support  a  judgment  entered  thereon  against  the 
objection  of  plaintiff's  counsel.  Peart  v.  Chi.,  Mil,  &  St.  P.  Ry.  Co.,  5  S.  D. 
337,  58  N.  W.  806;  Martin  v.  Morelock,  32  111.  485;  Abb.  Tr.  Brief,  181,  and 
cases  there  cited;  Bond  v.  Wood,  69  111.  282;  City  of  Chicago  v.  Rogers,  61 
111.  188;  Rosser  v.  McCoUy,  9  Ind.  587;  Young  v.  Seymour,  4  Neb.  86;  3 
Cooleys  Bl.  Comm.  377. 

RENDITION  OF  VERDIGT— POLLING  JURY.  Sec.  5058  Comp. 
Laws;  §  5442  Rev.  Codes  N.  D.  When  the  jury  have  agreed 
upon  their  verdict,  they  must  be  conducted  into  court,  their 
names  called  by  the  clerk,  and  the  verdict  rendered  by  their 
foreman.     The  verdict  must  be  in  writing,  signed  by  the  fore- 


30  CODE  OF  CIVIL  PROCEDURE. 

man,  and  must  be  read  by  the  clerk  to  the  jury,  and  the  in- 
quiry made  whether  it  is  their  verdict.  If  any  juror  disagrees, 
they  must  be  sent  out  again;  but  if  no  disagreement  be  ex- 
pressed, and  neither  party  requires  the  jury  to  be  polled,  the 
verdict  is  complete,  and  the  jury  discharged  from  the  case. 
Either  party  may  require  the  jury  to  be  polled,  which  is  done 
by  the  court  or  clerk  asking  each  juror  if  it  is  his  verdict.  If 
any  one  answer  in  the  negative,  the  jury  must  again  be  sent 
out. 

Sec.  258  C.  C.  P.;  Levisee  p.  76;  Harst  Pr.  Deer.  Code  §  618. 

Consult  decisions  under  preceding  section. 

The  following  provisions  were  enacted  by  the  legislature  of  South  Da- 
kota in  1893  [Ses.  Laws.  chap.  Ill],  entitled  "An  act  to  provide  for  a  ver- 
dict by  three-fourths  of  the  jury  in  certain  civil  cases." 

THREE-FOURTHS  OF  JURY  RENDER  VERDICT  Sec.  1.  In  all 
civil  actions  cognizable  by  a  justice  of  the  peace,  except  actions 
for  the  forcible  entry  and  detainer  or  detainer  of  real  property, 
tried  in  the  circuit  or  county  court,  the  verdict  may  be  rendered 
by  three-fourths  of  the  jury  in  the  manner  provided  in  section 
2  of  this  act. 

RENDITION  OF  VERDICT— NINE  JURORS  SUFFICIENT  Sec.  2. 
When  the  jury  have  agreed  upon  their  verdict  they  must  be 
conducted  into  court,  their  names  called  by  the  clerk  and  the 
verdict  rendered  by  their  foreman.  The  verdict  must  be  in 
writing,  signed  by  the  foreman,  and  must  be  read  by  the  clerk 
to  the  jury  and  the  inquiry  made  whether  it  is  their  verdict.  If 
four  or  more  of  the  jury  disagree  they  must  be  sent  out  again. 
If  nine  of  the  jury  agree  to  the  verdict,  ^t  shall  be  the  verdict 
of  the  jury  and  so  recorded,  and  if  neither  party  requires  the 
jury  to  be  polled  the  verdict  is  complete  and  the  jury  dis 
charged  from  the  case.  Either  party  may  require  the  jury  to 
be  polled,  which  is  done  by  the  court  or  clerk  asking  each  jur- 
or if  it  is  his  verdict.  If  more  than  three  answer  in  the  nega- 
tive the  jury  must  be  sent  out. 

Sec.  3.  All  acts  and  parts  of  acts  in  conflict  with  the 
provisions  of  this  act  are  hereby  repealed. 

[Author's  note.]  The  above  provisions  are  understood  to  have  been 
construed  by  the  nisi pWifS  judges  in  South  Dakota  to  apply  to  and  govern 


OF  THE  CONDUCT  OF  THE  TRIAL.  31 

the  practice  in  the  circuit  and  county  courts  on  trial  of  cases  appealed  from 
justice's  courts,  except  as  to  the  class  of  cases  expressly  excepted  from  the 
operation  of  the  act.  They  seem  to  have  been  adopted  pursuant  to  section 
6  art.  VI  constitution  of  S.  D.  [set  forth  in  full  under  §  5032,  Comp.  Laws.] 

Right  to  Poll  Jury.  Unless  it  is  expressly  waived,  either  party  has  an 
absolute  rig-ht  to  have  the  jury  polled  on  the  announcement  of  the  verdict, 
whether  oral  or  sealed,  and  at  any  time  before  the  same  is  recorded.  Peart 
v.  Chi.  Mil.  &  St.  P.  Ry.  Co.,  5  S.  D.  337,  58  N.  W.  806;  Martin  v.  Morelock 
32  111.  485;  Abb.  Tr.  Brief,  181,  and  cases  there  cited;  Bond  v.  Wood,  69  111. 
282.  Irregular  Verdict,  Where  the  judge  received  the  verdict  in  the  ab- 
sence of  the  officers  of  court,  the  parties  and  their  attorneys,  late  at 
night  after  adjournment,  and  allowed  the  jury  to  separate,  and  the  verdict 
was  thereafter  handed  by  the  judge  to  the  clerk  and  by  him  recorded,  it  is 
privy  verdict  and  of  no  force  or  validity,  because  not  affirmed  by  the  jury  in 
open  court.  Peart  v.  Chi.  Mil.  &  St.  P.  Ry.  Co.,  supra.  [Reported  more 
fully  under  preceding  section.]  Young  v.  Seymour,  4  Neb.  86;  3  Cooley's 
Bl.  Coram.  377. 

VERDICT  CORRECTED  IN  FORM.  Sec.  5059  Comp.  Laws;  § 
5443  Rev.  Codes  N.  D.  When  tlie  verdict  is  announced,  if  it  be 
informal  or  insufficient  in  not  covering  tlie  issue  submitted,  it 
may  be  corrected  by  tlie  jury  under  the  advice  of  the  court,  or 
the  jury  may  be  again  sent  out. 

Seo.  259  C.  C.  P.;  Levisee,  p.  77;  Harst.  Pr.,  Deer.  Code,  §  619. 

Consult  decisions  under  next  two  sections. 

Sufficient  Finding — All  Issues.  A  verdict,  not  objected  to  when  re- 
turned, finding  for  plaintiff  upon  all  the  issues,  and  that  plaintiff  is  entitled 
to  the  immediate  possession  of  the  property  described  in  the  complaint,  the 
value  of  which  is  therein  specified,  is  sufficient  to  support  a  judgment  for 
plaintiff  accordingly  entered,  where  the  evidence  fully  sustains  allegations 
of  ownership,  right  to  immediate  possession,  and  wrongful  detention.     Hor- 

mann  v.  Sherin, S.  D ,  60  N.   W.  145;  Arthur  v.  Wallace,  8  Kan. 

267;  Ingle  V.  Mudd,  86  Mo.  217;  Smith  v.  Dodge,  37  Mich.  354;  Coit  v.  Wap- 
les,  1  Minn.  134  [Gil.  110];  Anderson  v.  O'Laughlin,  1  Mont.  81;  Williams 
v.  Porter,  41  Wis.  422.  General  Verdict— What  Damages.  In  a  case  where 
the  sole  issue  is  plaintiff's  right  to  recover  anything  of  defendant,  and 
where  the  amount  due,  if  anything,  is  admitted  by  the  pleadings,  and  where 
the  jury  returns  a  general  verdict  for  plaintiff  and  against  defendant,  with- 
out fixing  the  amount  of  recovery,  it  is  not  prejudicial  error  for  the  court  to 
order  judgment  for  plaintiff  for  the  amount  admitted  by  the  pleadings. 
English  V.  Goodman  etal,  3  N.  D.  129,  54  N.  W.  540;  Hodgkins  v.  Mead,  119 
N.  Y.  166,  23  N.  E.  559.  Sureties— Damages.  In  an  action  on  a  county 
treasurer's  bond  for  $10,000,  the  principal  making  no  answer,   the  sureties 


32  CODE  OF  CIVIL  PROCEDURE. 

setting  up  a  common  defense,  the  verdict  was  "for  the  plaintiff  on  all  the  is- 
sues, and  assess  plaintiff's  damages  at  ten  thousand  dollars."  The  court  en- 
tered judgment  thereon  against  the  principal  for  $10,000,  and  against  each 
of  the  sureties  for  the  amount  set  opposite  his  name,  they  having  bound 
themselves  '"in  the  amount  set  opposite  our  [their]  respective  names."  Held 
no  error  of  which  the  sureties  could  complain.     Custer  Co.  v.  Albien  et  al, 

....  S.  p ,  64N.  W.  533;  People  v.  Love,  25  Cal.   520;  Pom.   Rem.  & 

Rem.  Rights,  §  406. 


CHAPTER  IV. 


Art.  5,  Chap.  12,  Code  of  Civil  Procedure. 
of  the  verdict. 

VERDICT— GENERAL  AND  SPECIAL  DEFINED.  §  5060  Comp. 
Laws;  §  5444  Rev.  Codes  N.  D.  The  verdict  of  a  jury  is  either 
general  or  special: 

1.  A  general  verdict  is  that  by  which  they  pronounce 
generally  upon  all  or  any  of  the  issues,  either  in  favor  of  the 
plaintiff  or  defendant;  and, 

2.  A  special  verdict  is  that  by  which  the  jury  find  the 
facts  only,  leaving  the  judgment  to  the  court. 

The  special  verdict  must  present  the  conclusions  of  fact  as 
established  by  the  evidence,  and  not  the  evidence  to  prove 
them;  and  these  conclusions  of  fact  must  be  so  presented  as 
that  nothing  shall  remain  to  the  court  but  to  draw  from  them 
conclusions  of  law. 

Sec.  260  C.  C.  P.;  Levisee  p.  77;  Wait's  Code  §260;  Harst  Pr.  Deer. 
Code  §  624. 

Consult  decisions  under  next  three  sections,  and  preceding  section. 

1.  Must  Respond  to  Issues.  The  verdict  of  the  jury  must  be  respon- 
sive to  all  the  issues  submitted  to  it.  Uhlig  v.  Garrison  et  al,  2  Dak.  99,  2 
N.  W.  258.  What  Will  Support  Judgment.  In  claim  and  delivery,  a  ver- 
dict not  objected  to,  finding  for  plaintiff  upon  all  issues,  and  that  plaintiff  is 
entitled  to  immediate  possession,  and  specifying  the  value,  will  support  a 
judgment  for  plaintiff,  where  the  evidence  fully  sustains  the  material  alle- 
gations in  the  complaint.     Hormann  v.  Sherin, S.  D ,  60  N.  W.  145. 


OF  THE  VERDICT.  33 


See  as  to  a  general  verdict  for  plaintiff  on  all  issues,  in  an  action  upon  a 
bond,  where  the  sureties  bound  themselves  in  certain  amounts  set  opposite 

their  names,  Custer  Co.  v.  Albien  et  al S.  D ,  64  N.  W.  533,  more 

fully  explained  under  preceding  section. 

2.  Verdict  Neither  General  Nor  Special.  In  replevin  for  goods, 
plaintiflf  claiming  under  two  chattel  mortgages,  defendant  as  sheriff  claim- 
ing that  the  first  mortgage,  marked  "Exhibit  C"  was  fraudulent  and  void, 
but  disclaimed  right  to  possession  of  more  of  the  goods  than  might  remain 
after  payment  of  the  amount  due  on  the  second  mortgage,  the  verdict  found 
"in  favor  of  plaintiff,  and  against  defendant,  except  as  to  the  mortgage 
marked  'Exhibit  C,'  which  we  find  to  be  null  and  void,  and  that  the  plain- 
tiff is  entitled  to  the  possession  of  the  property  described  in  the  complaint," 
and  finding  the  value  of  the  property,  and  assessing  plaintiff's  damages  by 
reason  of  the  taking  and  detention  of  the  property  at  a  certain  amount;  the 
court  rendered  a  judgment  that  defendant  was  entitled  to  possession  of  the 
property,  or,  if  a  return  could  not  be  had,  to  the  value  of  his  interest,  the 
difference  between  the  value  of  the  property  and  amount  of  the  second 
mortgage,  and  that  defendant  recover  costs.  Held,  that  the  judgment  was 
erroneous,  the  verdict  being  neither  general  or  special.  Rudolph  v.  North, 
6  Dak.  79,  50  N.  W.  487.  The  special  finding  in  the  verdict,  "except  as  to 
the  mortgage  marked  'Exhibit  C,'  which  we  find  to  be  null  and  void,"  was 
not  sufficient  to  sustain  the  judgment.  Id.  Special  Questions.  When  all 
the  material  issues  in  the  case  are  fairly  and  fully  submitted  to  the  jury  un- 
der proper  instructions,  and  a  general  verdict  covering  all  the  issues  is  re- 
turned, it  is  not  error  to  refuse  to  submit  to  the  jury  special  questions  of 
fact,  nor  is  it  error  in  such  case  if  the  jury  fail  to  answer  such  special  ques- 
tion. McCormack  v.  Phillips,  4  Dak.  506,  34  N.  W.  39.  Special  Questions, 
Discretionary.  The  submission  of  special  questions  to  be  answered  by  the 
jury  in  addition  to  a  general  verdict,  is  a  matter  of  discretion  of  the  court 
under  our  Code.  Neither  party  can  require  it  as  a  matter  of  right.  That 
submission  being  discretionary,  they  can  be  withdrawn  by  the  court  at  any 
time  before  the  special  findings  are  given,  and  such  withdrawal  is  not 
ground  of  exception.  Nat.  Refining  Co.  v.  Miller  et  al.,  1  S.  D.  548,  47  N. 
W.  962;  Taylor  v.  Ketchum.  28  N.  Y.  Super.  Ct.  514;  Swift  v.  Mulkey,  14 
Ore.  59,  12  Pac.  76;  Contra,  Ry.  Co.  v.  Fray,  35  Kan.  708,  12  Pac.  98;  Ins. 
Co.  V.  Hathaway,  43  Kan.  403,  23  Pac.  428;  Duesterberg  v.  State,  116  Ind. 
144,  17  N.  E.  624.  Verdict  and  Special  Findings  Consistent.  In  an  action 
of  claim  and  delivery,  the  complaint  alleging  lawful  possession  of  the  prop- 
erty, absolute  ownership  as  to  part,  special  interest  as  to  the  remainder, 
wrongful  seizure  by  one  C,  and  that  thereafter  it  came  into  defendant's 
possession,  that  demand  for  its  return  had  been  made,  and  return  refused, 
the  jury  returned  a  general  verdict  for  plaintiff  upon  all  the  issues,  found 
the  value  of  the  property  and  damages  for  jtg  detention,  and  a  special  ver- 
3— T  P 


34  CODE  OF  CIVIL  PROCEDURE. 

diet,  to  the  effect  that  defendant  purchased  the  property  at  private  sale 
from  one  who  took  it  under  a  chattel  mortgage,  and  that  the  property  was 
not  placed  in  charge  of  defendant  by  the  party  who  took  it  by  virtue  of  the 
mortgage,  but  of  a  third  person.  Held,  that  the  general  verdict  was  not  in 
conflict  with  the  special  findings,  and  that  the  general  verdict  settled  all 
disputed  facts  not  passed  upon  in  the  special  findings.  Everett  v.  Buchanan, 
2  Dak.  249,  6  N.  W.  339.  Jury  Finding  on  Law  Question  -Lien.  Neither 
the  submission  by  the  court  of  a  question  of  law  to  the  jury,  nor  the  finding 
of  the  jury  thereon  is  good  ground  for  exception  or  assignment  o^  error,  pro- 
vided such  finding  is  right  in  law  under  the  evidence.  McCormack  v. 
Phillips,  4  Dak.  506,  34  N.  W.  39.  It  is  not  error  for  the  jury,  to  include  in 
a  general  verdict  for  plaintiff,  assessing  his  damages  at  a  specified  sum, 
the  additional  finding  "that  he  is  entitled  to  a  lien  therefor."  McCormack 
v.  Phillips,  supra. 

WHEN  EITHER— SPEC/AL  DIRECTED— WHICH  CONTROLS. 
§  5061  Comp.  Laws;  In  an  action  for  the  recovery  of  money  only, 
or  specific  real  property,  the  jury  in  their  discretion,  may  render 
a  general  or  special  verdict.  In  all  other  cases  the  court  may 
direct  the  jury  to  find  a  special  verdict  in  writing  upon  all  or 
any  of  the  issues,  and  in  all  cases  may  instruct  them,  if  they 
render  a  general  verdict,  to  find  upon  particular  questions  of 
fact,  to  be  stated  in  writing,  and  may  direct  a  written  finding 
thereon.  The  special  verdict  or  finding  must  be  filed  with  the 
clerk,  and  entered  upon  the  minutes.  Where  a  special  finding 
of  facts  is  inconsistent  with  the  general  verdict,  the  former 
controls  the  latter,  and  the  court  must  give  judgment  accord- 
ingly. 

SAME.  §5445  Rev.  Codes,  N.  D.  The  court  in  its  dis- 
cretion may,  and  when  either  party  at  or  before  the  close  of 
the  testimony  and  before  any  argument  to  the  jury  is  made  or 
waived  shall  so  request,  shall  direct  the  jury  to  find  a  special 
verdict.  Such  verdict  shall  be  prepared  by  the  court  in  the 
form  of  questions  in  writing,  which  shall  be  confined  to  matters 
involving  the  merits  of  the  case  and  'shall  admit  of  direct  an- 
swer and  the  jury  shall  make  their  answer  thereto  in  writing. 
The  court  may  also  direct  the  jury,  if  they  render  a  general 
verdict,  to  find  in  writing  upon  any  particular  questions  of  fact, 
to  be  stated  as  aforesaid.     In  every  action  for  the  recovery  of 


OF  THE  VERDICT,  35 


money  only,  or  of  specific  real  property,  the  jury  may  in  their 
discretion,  when  not  otherwise  directed  by  the  court,  render  a 
general  or  special  verdict.  The  special  verdict  or  finding  must 
be  filed  with  the  clerk  and  entered  upon  the  minutes.  When  the 
special  findings  of  fact  are  inconsistent  with  the  general  verdict, 
the  former  controls  the  latter  and  the  court  must  give  judg- 
ment accordingly.     (Am'd  Rev.  Com'rs. ) 

Sec.  261  C.  C.  P.;  Levisee  p.  77;  Wait's  Code  §261,  262;  Harst  Pr., 
Deer.  Code,  §  625. 

Consult  decisions  under  two  preceding  sections,  and  the  next  section; 
also  sections  5048,  5049,  Comp.  Laws,  §  5432,  5433,  Rev.  Codes,  N.  D. 

7.   General  Verdict. 

Claim  and  Delivery.  In  an  action  of  claim  and  delivery,  the  com* 
plaint  alleging  ownership  and  right  of  possession  in  plaintiff,  and  wrongful 
detention  by  defendant,  a  general  verdict  for  plaintiff  finds  all  these  issues 
for  plaintiff,  and  determines  that  he  is  owner  and  entitled  to  possession. 
Gaines  v.  White,  sheriff,  1  S.  D.  434,  47  N.  W.  524;  Payne  v.  June,  92  Ind. 
253;  Everit  v.  Walworth,  13  Wis.  419;  Gotloff  v.  Henry,  14  111.  384;  Arthur 
v.  Wallace,  8  Kan.  267.  Trustee — General  Verdict  Erroneous.  In  an  ac- 
tion to  recover  the  value  of  realty  and  the  products  thereof,  and  of  personal 
property  of  which  plaintiff  claimed  to  be  the  owner,  it  was  held,  that  when 
one  receives  a  deed  as  security  only,  or  personal  property,  and  with  a  prom- 
ise to  reconvey  the  realty  upon  payment,  and  to  return  the  personalty  on 
certain  contingencies,  he  becomes  a  trustee  for  the  owner;  that  a  trustee 
cannot  be  sued  at  law  while  the  trust  remains  open,  unless  the  exact  amount 
due  the  cestui  qxm  trust  has  been  in  some  manner,  liquidated,  and  no  act  remains 
to  be  performed  except  payment;  and  that  it  is  reversible  error  in  the  trial 
court  to  refuse  to  try  the  case  as  an  equity  case,  and  in  submitting  it  to  a 
jury  for  a  general  verdict.  Jasper  v.  Hazen,  1  N.  D.  75,  44  N.  W.  1018; 
Pom.  Eq.  Jur.  sec.  1079,  1080,  1421;  Davis  v.  Coburn,  128  Mass.  382;  Nor- 
ton V.  Ray,  139  Mass.  230;  Wingate  v.  Ferris,  50  Cal.  105;  Heyland  v.  Bad- 
ger, 35  Cal.  405;  Sandfoss  v.  Jones,  35  Cal.  481;  Judd  v.  Dike,  30  Minn.  380, 
15  N.  W.  672.  General  Verdict,  and  Finding.  In  Everitt  v.  Buchanan,  2 
Dak.  249,  6  N.  W.  4b9,  it  was  Mid,  under  the  state  of  the  issues  there  pre- 
sented, that  a  general  verdict  for  plaintiff  upon  all  the  issues,  in  an  action 
of  claim  and  delivery,  warranted  a  judgment  for  plaintiff,  and  that  said 
special  finding  was  not  inconsistent  with  the  general  verdict;  Shannon,  C. 
J.  concurring  in  a  separate  opinion  found  in  8  N.  W.  31,  (39.)  (See  same 
case  more  fully  explained  under  preceding  section.)  Refusal  to  Submit 
Question,  Discretionary.  Where  the  instructions  given  by  the  court  ful- 
ly cover  the  facts  of  the  case,  it  is  not  error  to  refuse  to  submit  certain 
special  questions  to  the  jury  and  instruct  them  that  they  may  in  their  dis- 


36  CODE  OF  CIVIL  PROCEDURE. 

cretion  render  a  special  verdict  upon  such  issues.  It  is  in  all  cases  discre- 
tionary with  the  court  whether  he  will  so  charge  or  not.  Moline  Plow  Co. 
V.  Gilbert  et  al.  3  Dak.  239,  15  N.  W.  1.  Fire  Policy.  In  an  action  to  re- 
cover upon  a  fire  insurance  policy,  held,  the  submission  of  specific  questions 
to  the  jury  is  discretionary  with  the  court,  and  to  refuse  is  not  error.  Enos 
et  al,  V.  St.  Paul  F.  &  M.  Ins.  Co.,  4  S.  D.  639,  57  N.  W.  919;  Nat.  Refining 
Co.  V.  Miller,  1  S.  D.  548,  47  N.  W.  962.  No  Right  to  Special  Question. 
The  submission  of  special  questions  to  a  jury,  to  be  answered  by  them  in  ad- 
dition to  a  general  verdict,  is  matter  of  discretion  of  the  court,  and  not  a 
matter  of  right;  and  such  submission  can  be  withdrawn  by  the  court  at  any 
time  before  the  special  findings  are  given,  and  such  withdrawal  furnishes 
no  ground  of  exception.  Nat.  Refining  Co.  v.  Miller  et  al,  1  S.  D.  548,  47, 
N.  W.  962.  General  and  Special — Stipulation.  In  an  act  to  foreclose  a 
mechanic's  lien,  the  parties  having  stipulated  for  a  jury  trial,  the  jury  in  a 
general  verdict  for  plaintiff,  assessing  his  damages  at  a  specified  sum,  in- 
cluded a  finding  "that  he  is  entitled  to  a  lien  therefor."  Held,  no  error. 
McCormack  v.  Phillips,  4  Dak.  506,  34  N.  W.  39;  Mnpls.  &  St.  L.  Ry.  Co.  v. 
Columbus  Rolling  Mill  Co.,  119,  U.  S.  149,  7  Sup.  Ct.  Rep.  168.  Jury  Dis- 
charged Without  Answering.  The  jury  were  discharged  without  objec- 
tion, after  rendering  a  general  verdict,  and  without  answering  the  following 
interrogatory  snbmitted  for  special  finding,  the  matter  of  which  was  fully 
covered  by  the  charge:  "Did  the  affidavit  and  lien  made  and  filed  by  plain- 
tiff *  *  *  contain  a  just  and  true  account  of  the  demand  due  him  after 
allowing  all  credits?"  Hdd,  no  error.  McCormack  v.  Phillips,  supra.  In 
the  case  last  cited  Francis,  J.  enlarges  upon  the  distinction  between  a  spec- 
ial verdict  or  special  finding  of  facts,  and  answers  to  interrogatories  pro- 
pounded to  the  jury  to  be  answered  at  the  same^  time  that  they  render  a 
general  verdict.  Mill  Dam — Special  Question.  Where  the  right  to  con- 
struct a  dam  for  water  power  of  eight  feet  head,  granted  defendant,  and  to 
overflow  his  lands  was  involved  in  an  action  by  the  grantor  for  overflowing 
his  lands,  the  issue  being  whether  the  number  of  feet  head  was  to  be  deter- 
mined by  the  difference  between  the  water  levels  above  and  below  the  dam 
when  the  mill  was  in  operation  or  when  it  was  idle,  and  the  jury  were  told 
to  ascertain  the  proper  method  of  measurement  from  the  evidence,  it  was 
proper  to  submit  for  a  special  finding  the  question:  "At  an  ordinary 
stage  of  water,  above  the  mill-wheel  and  the  level  of  the  water  is 
there  more  than  eight  feet  difference  between  the  level  of  the  water 
below  the  mill-wheel  in  the  race  while  the  mill  is  in  operation  ?"  Lang- 
ness  V.  Pettigrew,  5  Dak.  45,  37  N.  W.  758.  Plaintiff  having  granted  de- 
fendant the  right  to  construct  a  dam  "eight  feet  high  from  a  certain  rock  at 
the  edge  of  the  river  where  the  dam  crosses"  and  the  upper  surface  of  the 
rock  being  uneven,  the  question,  "was  the  dam  erected  more  than  eight 
feet  high  from  the  point  of  rock  designated  in  the  deed"  is  properly  submit- 
ted for  a  special  finding,  as  against  the  objection  that  no  point  of  a  rock  is 


OF  THE  VERDICT.  37 


SO  designated.  Langness  v.  Pettigrew,  supra.  Special  Ans-v^ers — When 
Disregarded.  Answers  to  special  interrogatories,  submitted  to  a  jury  by  a 
court  of  equity,  which  are  in  direct  conflict  with  the  undisputed  evidence, 
should  be  disregarded,  and  judgment  should  be  entered  upon  and  in  accord- 
ance with  findings  of  fact  justified  and  sustained  by  the  evidence  submitted 
at  the  trial.  Upton  v.  Hugos  et  a1,  . . . .  S.  D ,  64  N.  W.  523.  Exe- 
cution Against  Person — Verdict.  Ordinarily,  an  execution  against  the 
person  will  not  issue  upon  a  judgment  in  an  action  in  which  several  causes 
are  combined,  if  either  of  such  causes  is  one  that  would  not  allow  a  judg- 
ment upon  which  execution  against  the  person  might  issue;  but  the  rule  is 
not  applicable  where  the  verdict  upon  which  the  judgment  is  rendered  es- 
tablishes to  a  certainty  that  the  jury  found  against  defendant  only  upon  a 
cause  which  would  support  a  judgment  upon  wkich  such  an  execution 
might  issue;  so  held,  in  an  action  for  wrongful  conversion  of  personal  pro- 
perty. Hermann  v.  Sherin, S.  D. ,  65  N.  W.  434.  Evidence  Sus- 
taining Verdict.  When  sustained  by  competent  evidence,  a  general  vei- 
dict  upon  all  the  issues  is  conclusive  as  to  every  averment  essential  to  a  re- 
covery contained  in  the  pleading  of  the  prevailing  party.     Farmers'  Bank 

of  Frankfort,  v.  Bank  of  Canton,  ....  S.  D ,  65  N.  W.  1070.     Special 

Finding — Judgment.  Where,  in  an  action  at  law,  the  jury,  in  answer  to  a 
specific  question  of  fact,  finds  and  returns  a  definite  amount  as  due  the  plain- 
tiflf  from  the  defendants,  the  con  ectness  of  which  answer  is  not  challenged 
by  either  side,  plaintiff  is  presumptively  entitled  to  judgment  for  such 
amount.  John  A.  Tolman  Co.  v.  Savage  et  al,  5  S.  D.  496,  59  N.  W.  882. 
Negligence — Issue.  A  special  finding  of  a  jury  that  the  negligence  of  the 
defendant  causing  the  damage  to  plaintiff  was  the  condition  of  the  locomo- 
tive engine  is  within  the  allegations  of  the  complaint,  alleging  that,  "the 
defendant  carelessly  and  negligently  ran  an  engine  along  its  line  of  railway, 
which  engine  then  and  there  was  so  negligently  and  insufficiently  con- 
structed and  equipped,  and  so  negligently  and  carelessly  operated  by  the 
defendant,  that  it  emmitted  and  threw  out  large  sparks  of  fire."  Smith  v. 
Chi.  Mil.  &  St.  P.  Ry.  Co.,  4  S.  D.  71,  55  N.  W.  717.  "Ordinary  Care"— 
Special  Question.  In  an  action  against  a  railway  company  for  negligently 
causing  a  fire  which  destroyed  plaintiff's  property,  the  degree  of  careful- 
ness required  of  the  company  to  avoid  liability  depends  upon  circumstances; 
it  should  be  commensurate  with  the  danger,  but,  whether  the  care  so  re- 
quired is  slight  or  extreme,  it  is  "ordinary  care";  so  that  a  special  ques- 
tion submitted  to  the  jury  in  such  case,  as  to  whether  defendant  company 
managed  its  locomotive  "with  ordinary  care  and  prudence"  on  the  occasion 
of  the  fire,  presented  the  whole  subject  of  the  company's  duty  in  handling 
its  locomotive,  whether  the  care  required  was  usual  or  unusual.  Kronkv,  Ch^., 
Mil.  &  St.  P.  Ry.  Co.,  3  S.  D.  93,  52  N.  W.  420;  Ry.  Co.  v.  McDaniels,  107 
U.  S.  460,  2  Sup.  Ct.  Rep.  932;  Ry.  Co.  v.  Goddard,  25  Ind.  185;  Fletcher  v. 
Ry.  Co.,  1  Allen  (Mass.)  9;  Brown  v.  Lynn,  31  Pa.   St.,  510;  Walsh  v.   Ry., 


38  CODE  OF  CIVIL  PROCEDURE. 

Etc.,  Co.,  10  Ore.  254;  Fassett  v.  Roxbury,  65  Vt.  556;  And.  Law  Diet. 
Judgment — On  What  Findings.  In  the  trial  of  an  action  in  the  circuit 
court,  upon  appeal  from  the  action  of  the  probate  court  in  the  appointment 
of  a  guardian,  questions  of  fact  were  submitted  to  a  jury,  whose  answers, 
though  only  advisory,  were  referred  to  in  the  judgment  as  having  been 
"duly  considered,"  no  other  or  different  findings  being  found  or  claimed  to 
be  in  the  record,  it  will  be  understood  that  the  judgment  was  based  upon 
such  findings.  Engle  v.  Yorks, S.  D ,  64  N.  W.  132.  Partners- 
Joint  Liability.  Where,  in  an  action  against  a  firm  composed  of  two  per- 
sons, the  jury  renders  a  general  verdict  only,  in  favor  of  plaintiff  and 
against  defendant,  it  is  error  for  the  court,  while  such  verdict  remains  in 
the  record,  to  render  judgment  against  plaintiff,  dismissing  the  action  as  to 
one  member  of  the  firiji.  Kellogg,  Johnson  &  Co.  v.  Oilman  et  al,  3  N.  D. 
538,  58  N.  W.  339.  Substitution  of  Court's  Findings.  In  an  action  by  one 
claiming  ownership  of  land  to  restrain  a  sheriff  from  selling  same  under 
execution  against  plaintiff's  grantor,  the  answer  alleging  the  deed  from 
plaintiff's  grantor  was  fraudulently  made  with  the  knowledge  of  plaintiff, 
for  the  purpose  of  placing  the  property  beyond  i-each  of  grantor's  creditors, 
the  case^being  tried  and  submitted  upon  that  issue,  the  evidence  not  being 
returned,  the  court  having  submitted  a  number  of  questions  of  fact  to  the 
jury,  upon  the  answers  to  which  both  sides  moved  for  judgment;  the  court 
on  such  motions  made  and  substituted  findings  of  its  own  in  lieu  of  those  re- 
turned by  the  jury;  held,  that  a  finding  of  the  trial  court  that  such  deed 
constitutes  a  mortgage  in  favor  of  plaintiff  to  secure  him  for  the  amount 
which  the  court  finds  was  paid  by  him  to  his  grantor  is  outside  of,  and  for- 
eign to  the  issue  litigated  and  submitted  for  decision.  Harkins  v.  Cooley  et 
al,  5  S.  D.  227,  58  N.  W.  560;  Mondran  v.  Goux,  51  Cal.  151;  Morenhout  v. 
Barron,  42  Cal.  605;  Devoe  v.  Devoe,  51  Cal.  543;  Gregory  v.  Nelson,  41  Cal. 
278.  Ownership — When  Matter  of  Law.  The  undisputed  evidence  show- 
ing plaintiff  the  owner  and  entitled  to  immediate  possession  of  the  pro- 
perty, in  claim  and  delivery,  and  seized  by  defendant  as  the  property  of  an 
attachment  debtor,  the  court  may  determine  the  question  of  ownership  and 
possession  as  matters  of  law,  and  withhold  the  same  from  the  jury  under  an 
instruction  which  in  effect  requires  them  to  find  from  the  evidence  the  val- 
ue of  such  property  at  the  time  it  was  taken,  and  to  return  a  verdict  accord- 
ingly in  the  usual  form,  in  plaintiff's  favor  and  against  defendant.  Gris- 
wold  V.  Sundback  et  al,  [on  rehearing],  4  S.  D.  441,  60  N.  W.  1068;  Malone 
V.  Stickney,  88  Ind.  594;  Litchman  v.  Potter,  116  Mass.  371;  Elsworth  v. 
Henshall,  4  G.  Green  [la. J,  417;  McCourt  v.  Bond,  [Wis.],  25  N.  W.  532; 
Cobby.  Repl.  552.  Probable  Cause — Law  and  Fact.  The  question  of 
probable  cause  is  a  mixed  one  of  law  and  fact,  and  when  such  defense  is  al- 
leged and  evidence  offered  in  relation  thereto,  which  is  conflicting,  its 
credibility  is  to  be  considered  and  determined  by  the  jury,  under  proper  in- 
structions as  to  what  facts,  if  they  exist,  constitute  probable  cause.     Jack- 


OF  THE  VERDICT.  39 


son  V.  Bell,  5  S.  D.  257,  58  N.  W.  671;  Acker  v.  Gundy,  (Pa.  Sup.),  12  Atl. 
595;  Stewart  v.  Sonneborn,  98  U.  S.  187;  Walker  v.  Camp,  (la.),  27  N.  W. 
800;  Murry  v.  Long,  1  Wend.  140.  Contract — Construction  ot  Where  a 
contract  in  evidence  in  an  action  has  been  construed  by  the  trial  court  in  its 
instructions  to  the  jury,  no  exceptions  being  taken  to  such   instructions, 

they  will  be  assumed  on  appeal  to  be  correct.     Brown  v.  McCaul  et  al, 

S.  D ,60N.  W.  151. 

JURY  FIND  AMOUNT— ASSESSMENT.  §  5062  Comp.  Laws; 
§  5446,  Rev.  Codes,  N.  D.  When  a  verdict  is  found  for  the 
plaintiff  in  an  action  for  the  recovery  of  money,  or  for  the  de- 
fendant when  a  counter-claim  for  the  recovery  of  money  is 
established,  exceeding  the  amount  of  plaintiff's  claim  as  estab- 
lished, the  jury  must  also  find  the  amount  of  the  recovery;  and, 
they  may  also,  under  the  direction  of  the  court,  assess  the 
amount  of  the  recovery,  when  the  court  gives  judgment  for  the 
plaintiff  on  the  answer. 

[Sec.  5446  Rev.  Codes  N.  D. ,  is  the  same,  except  that  in  lieu  of  the 
words  "for  the  plaintiff  on  the  answer",  the  words  "on  the  pleadings  for 
either  party,"  are  submitted.     (Am'd  Rev.  Com'rs.)] 

Sec.  262  C.  C.  P.;  Levisee  p.  77;  Wait's  Code  §  263;  Harst.  Pr.  Deer. 
Codeg  626. 

Consult  decisions  under  three  preceding  sections,  and  the  next  section. 

Amount  Under  Pleadings.  In  a  case  where  the  sole  issue  is  plain- 
tiff's right  to  recover  anything  of  defendant,  and  where  the  amount  due,  if 
anything,  is  admitted  by  the  pleadings,  and  where  the  jury  returns  a  gen- 
eral verdict  in  favor  of  plaintiff,  and  against  defendant,  without  fixing  the 
amount  of  the  recovery,  it  is  not  prejudicial  error  to  order  judgment  for 
plaintiff  for  the  amount  admitted  by  the  pleadings.  English  v.  Goodman 
et  al,  3  N.  D.  129,  54  N.  W.  540;  Hodgkins  v.  Mead,  119  N.  Y.  166,  23  N.  E. 
559. 

FIND  VALUE  AND  DAMAGES.  §  5063  Comp.  Laws.  In 
an  action  for  the  recovery  of  specific  personal  property,  if  the 
property  has  not  been  delivered  to  the  plaintiff,  or  the  defend- 
ant, by  his  answer,  claim  a  return  thereof,  the  jury,  if  their 
verdict  be  in  favor  of  the  plaintiff,  or,  if  being  ia  favor  of  the 
defendant,  they  also  find  that  he  is  entitled  to  a  return  thereof, 
must  find  the  value  of  the  property,  and,  if  so  instructed,  the 
value  of  specific  portions  thereof,  and  may  at  the  same  time  as- 
sess the  damages,  if  any  are  claimed  in  the  complaint  or  an- 
swer, which  the  prevailing  party  has  sustained  by  reason  of 
the  taking  or  detention  of  such  property. 


40  CODE  OF  CIVIL  PROCEDURE. 

SAME— PARTY'S  INTEREST  IN.  §  5447  Rev.  Codes  N.  D. 
In  an  action  for  the  recovery  of  specific  personal  property  the 
jury  must  find  by  their  verdict  the  facts  as  the  case  may  be  as 
follows: 

1.  In  case  they  find  against  the  defendant  and  the  property 
has  not  been  delivered  to  the  plaintiff,  they  must  find  the  value 
of  the  property,  or  of  the  plaintiff's  interest  therein,  if  less 
than  its  full  value,  at  the  time  of  the  taking,  and  that  the  plain- 
tiff is  entitled  to  a  delivery  of  the  property,  and  they  must  also 
assess  the  damages,  if  any  are  claimed  in  the  complaint,  which 
the  plaintiff  has  sustained  by  reason  of  the  taking  and  deten- 
tion of  such  property;  or, 

2.  In  case  they  find  against  the  defendant'  and  the  pro- 
perty has  been  delivered  to  the  plaintiff,  they  must  find  that 
the  plaintiff  is  entitled  to  the  property  and  they  must  also  as- 
sess the  damages,  if  any  are  claimed  in  the  complaint,  which 
the  plaintiff  has  sustained  by  reason  of  the  taking  and  deten- 
tion of  such  property. 

3.  In  case  they  find  against  the  plaintiff  and  the  property 
has  been  delivered  to  him,  and  the  defendant  in  his  answer 
claims  a  return  of  the  property,  they  must  find  the  value 
thereof,  or  of  the  defendant's  interest  therein,  if  less  than  its 
full  value,  at  the  time  of  the  taking,  and  they  must  also  assess 
the  damages,  if  any  are  claimed  in  the  answer,  which  the  de- 
fendant has  sustained  by  reason  of  the  taking  and  detention  of 
such  property;  or, 

4.  In  case  they  find  against  the  plaintiff  and  the  property 
has  been  retained  by  the  defendant,  they  must  find  that  the  de- 
fendant is  entitled  to  such  property. 

5.  In  case  the  jury  finds  that  each  party  is  entitled  to 
specific  portions  of  the  property  in  controversy  and  such  por- 
tion has  been  delivered  to  the  opposite  party  and  a  return  is 
claimed  in  the  complaint  or  answer,  they  must  find'the  value  of 
such  portion,  or  of  the  party's  interest  therein,  if  less  than  its 
full  value,  at  the  time  of  the  taking,  and  also  assess  the  dam- 
ages, if  any  are  claimed  in  the  complaint  or  answer,  in  favor  of 
the  plaintiff  or  defendant  as  hereinbefore  provided  as  to  the 


OF  THE  VEEIDICT.  41 


portion  to  which  they  find  the  plaintiff  or  defendant  entitled. 

Whenever  the  jury  are  so  instructed,  they  must  find  the 
value  of  specific  portions  of  the  property  in  controversy  or  of 
the  interest  of  either  party  therein,  if  less  than  its  full  value, 
at  the  time  of  the  taking,  and  shall  also  assess  the  damages,  if 
any  are  claimed  by  the  party  in  whose  favor  they  find  sustained 
by  reason  of  the  taking  and  detention  of  such  property. 
(Am'd.  Rev.  Com'rs. ) 

Sec.  263  C.  C.  P.;  Levisee  p.  78;  Wait's  Code  §  316;  Harst  Pr. 
Deer  Code,  §  627. 

Consult  decisions  under  two  preceding  sections. 

Replevin  and  Detinue — Distinction  Abolished.  The  distinction  rec- 
ognized at  common  law,  between  the  action  of  replevin  and  detinue,  does  not 
exist  in  this  state,  the  Code  having  abolished  all  forms  of  pleading  existing 
prior  thereto,  and  necessarily  abolished  the  distinction  between  these  ac- 
tions; and  the  action  to  recover  personal  property  takes  the  place  of,  and  is 
a  substitute  for,  both  the  former  actions  of  replevin  and  detinue.  Willis  v. 
DeWitt,  3  S.  D.  281,  52  N.  W.  1090.'  The  primary  objects  of  the  actions  of 
replevin  and  detinue  was  to  recover  the  possession  of  specific  personal  prop- 
erty, and  the  gist  of  the  action,  in  either  form,  was  the  unlawful  detention 
of  the  property  at  the  commencement  of  the  action.  The  action  to  recover 
personal  property  under  our  Code  has  the  same  object  in  view, — the  recov- 
ery of  the  possession  of  the  property — and  the  unlawful  detention  is  the  gist 
of  the  action.  Willis  v.  DeWitt,  supra;  Hickey  v.  Hinsdale,  12  Mich.  100; 
Gildas  V.  Crosby,  61  Mich.  413,  28  N.  W.  153.  It  is  not  material  in  the  ac- 
tion to  recover  possession  of  personal  property  how  the  defendant  acquired 
possession,  so  far  as  the  action  to  recover  the  property  is  concerned.  The 
principal  issues  in  this  action  are,  the  plaintiff's  right  to  possession,  the  de- 
fendant's unlawful  detention,  the  value  of  the  property,  and  damages  for  its 
detention.  Willis  v.  DeWitt,  supra.  Immaterial  Amendment.  An 
amendment  to  the  complaint  to  make  it  conform  to  the  proof,. adding  there- 
to an  allegation  that  the  defendants  unlawfully  and  wrongfully  took  the 
property  from  the  possession  of  plaintiff,  when  it  is  alleged  in  the  original 
complaint  that  plaintiff  is  the  owner  and  entitled  to  possession  of  the  prop- 
erty, and  that  it  is  unlawfully  detained  by  defendant,  is  an  immaterial 
amendment,  and  authorizes  no  judgment  that  could  not  have  been  rendered 
under  the  original  complaint.  Willis  v.  DeWitt,  3  S.  D.  281,  52  N.  W.  1090; 
Oleson  V.  Merrill,  20  Wis.  462.  Possession  Necessary.  To  enable  the 
plaintiff  to  maintain  his  action  for  the  recovery  of  possession  of  pergonal 
property,  defendant  must  have  either  the  actual  or  constructive  possession 
of  the  property  at  the  time  the  action  is  instituted.  Willis  v.  DeWitt,  3  S. 
3i— TP 


k 


42  CODE  OF  CIVIL  PROCEDURE. 

D.  281,  52  N.  W.  1090;  Moses  v.  Morris,  20  Kan.  208;  Feder  v.  Abrahams,  28 
Mo.  App.  454;  Hall  v.  White,  106  Mass.  -599;  Johnson  v.  Garlick,  25  Wis.  705; 
McHugh  V.  Robinson,  71  Wis.  565,  37  N.  W.  426;  State  v.  Jennings,  14  Ohio 
St.  73;  Coffin  v.  Gephard,  18  la.  257;  Haughton  v.  Newberry,  69  N.  C.  4-56; 
Mitchell  V.  Roberts,  50  N.  H.  486;  Ames  v.  Boon  Co.,  8  Minn.  467  (Gil.  417); 
Howe  V.  Shaw,  56  Me.  291;  Street  v.  McClerkin,  77  Ala.  580;  Cobby  Repl. 
sees.  61-64.  General  Verdict  Determines  What.  When  the  complaint  al- 
leges ownership  and  right  of  possession  in  plaintiff,  and  wrongful  detention 
by  defendant,  a  general  verdict  for  plaintiff  finds  all  these  issues  for  plaint- 
iff. Such  a  verdict  determines  that  he  is  owner  and  entitled  to  possession. 
Gaines  v.  White,  sheriff.  2  S.  D.  410,  47  N.  W.  524.  A  general  verdict  for 
plaintiff  will  not  be  set  aside  because  the  jury  did  not  find  damages.  Dam- 
ages are  not  the  prime  object  in  an  action  of  claim  and  delivery.  They  are 
but  the  nominal  issue.  Gaines  v.  White,  sheriff,  2  S.  D.  410,  47  N.  W.  524. 
Where  the  verdict  of  the  jury  was  that  the  goods  be  delivered  up  to  the  de- 
fendant, or  that  he  recover  a  certain  sum  as  the  value  thereof,  which  sum 
was  in  excess  of  the  highest  value  of  the  goods  proved  in  evidence,  held,  that 
although  the  attention  of  the  trial  court  was  not  called  to  this  variance  at 
the  rendering  of  the  verdict  and  before  the  jury  were  discharged,  and  al- 
though the  motion  for  a  new  trial  was  made  and  denied  pro  forma  without 
argument,  this  court  will  reverse  the  judgment  and  order  a  new  trial,  unless 
the  parties  consent  to  a  modification  of  the  judgment  by  reducing  it  to  the 
proved  value  of  the  goods.  North  Star  Boot  &  Shoe  Co.  v.  Braithwaite,  4 
Dak.  454,  34  N.  W.  68.  The  evidence  fully  sustaining  allegations  of  owner- 
ership,  right  to  possession  and  wrongful  detention,  a  verdict  finding  for 
plaintiff  upon  all  the  issues,  and  that  plaintiff  is  entitled  to  immediate  pos- 
session of  the  property,  the  value  of  which  is  therein  specified,  is  sufficient 

to  support  a  judgment  for  plaintiff.      Hermann  v.  Sherin, S.  D ,60 

N.  W.  145.  Court  Determines  Ownership  When.  The  undisputed  evi- 
dence showing  plaintiff  is  the  owner  and  entitled  to  immediate  possebsion  of 
the  property  described  in  his  complaint  in  claim  and  delivery,  and  seized  by 
defendants  as  the  property  of  an  attachment  debtor,  the  court  may  deter- 
mine the  question  of  ownership  and  possession  as  matters  of  law,  and  with- 
hold the  same  from  the  jury  under  an  instruction  which  in  effect  requires 
them  to  find  from  the  evidence  the  value  of  such  property  at  the  time  it  was 
taken,  and  to  return  a  verdict  accordingly,  and  in  the  usual  form,  in  plain- 
tiff's favor.      Griswold  v.  Sundback  et  al.,  (on  rehearing) S.  D ,  60 

N.  W.  1068.  Value  of  Use.  The  fact  that  a  defendant  in  an  action  of  claim 
and  delivery  gives  a  delivery  bond  does  not  render  the  proceeding  analogous 
to  an  action  for  conversion;  and  if  plaintiff  recover  an  alternative  judgment, 
he  is  not  limited  in  his  damages  for  the  detention  to  interest  on  the  value, 
but  may  recover  the  value  of  the  use  of  his  property  that  has  been  wrong- 
fully detained  from  his  possession,  where  such  property  has  an  active  capac- 
ity for  earning  money.     Northrup  v.  Cross,  sheriff,  2  N.  D.  433,  51  N.  W.  718. 


OF  THE  VERDICT.  43 


Cost  of  Regaining  Possession.  Where  personal  property  is  wrongfully 
taken  by  an  officer  and  sold  at  judicial  sale,  and  the  owner  purchases  at  such 
sale  and  receives  possession  thereof,  he  is  not  entitled,  in  an  action  of  claim 
and  delivery  against  the  officer,  to  judgment  for  the  value  of  the  property, 
but  in  lieu  thereof  is  entitled  to  judgment  for  the  sum  it  cost  him  to  regain 
possession,  with  interest  from  date  of  its  payment.  Northrup  v.  Cross,  sher- 
iff (on  rehearing),  2  N.  D.  433,  51  N.  W.  718;  Ford  v.  Williams,  24  N.  Y.  359; 
Baker  v.  Freeman,  9  Wend.  36;  Mclnroy  v.  Dyer,  47  Pa.  St.  118;  Sprague  v. 
Brown,  40  Wis.  612;  Leonard  v.  Maginnis,  34  Minn.  506,  26  N.  W.  733. 
Ownership — Judgment.  Where  each  party  claims  the  right  of  possession 
by  virtue  of  absolute  ownership,  and  in  no  other  manner,  a  verdict  which  finds 
plaintiff  entitled  to  possession  of  the  property  and  fixes  its  value,  will  support  a 
judgment  for  plaintiff  for  possession  of  the  property,  or  its  value  as  found  by  the 
jury.  Branstetter  v.  Morgan,  3  N.  D.  290,  55  N.  W.  758;  Krause  v.  Cutting, 
32  Wis.  688;  Everit  v.  Bank,  13  Wis.  468;  Faulkner  v.  Meyers,  6  Neb.  415; 
Underwood  v.  White,  45  111.  488;  Clark  v.  Heck,  17  Ind.  281;  Payne  v.  June, 
92  Ind.  253.  Ownership — Striking  Evidence.  Where  plaintiff's  allegation 
of  ownership  is  put  in  issue,  and  title  alleged  in  defendants,  a  failure  to  in- 
ti'oduce  evidence  tending  to  show  plaintiff's  ownership  is  fatal  to  plaintiff's 
case;  and  where  in  such  case,  at  the  close  of  the  case  it  appeared  that  de- 
fendants were  the  owners  of  the  property,  held,  that  it  was  not  error  to  strike 
from  the  record  all  evidence  offered  by  plaintiff  to  support  his  claim  of  own- 
ership, on  defendants'  motion;  nor,  after  striking  out  such  evidence,  was  it 
error  to  direct  a  verdict  to  the  effect  that  defendants  were  owners  and  enti- 
tled to  a  return  of  the  property.  Haveron  v.  Anderson  et  al.,  3  N.  D.  540, 58 
N.  W.  340;  lield,  further,  in  such  case,  that  it  was  not  error,  the  value  of  the 
property  being  in  dispute,  to  submit  the  question  of  value  upon  the  evidence 
for  the  consideration  of  the  jury;  and  a  motion  to  strike  out  certain  evidence 
was  properly  denied.  Haveron  v.  Anderson  et  al.,  supra.  General  Denial. 
The  general  denial  in  actions  of  claim  and  delivery  under  the  Code  puts  in 
issue  not  only  the  unlawful  detention  of  the  property,  but  also  the  title  and 
right  to  possession  in  plaintiff;  and  under  it  defendant  may  not  only  show 
that  plaintiff  has  no  title  oi'  right  to  possession,  but,  by  way  of  establishing 
that  fact,  may  prove  title  in  himself  or  a  stranger;  and  to  disprove  unlawful 
detention  he  may  prove  that  some  other  person  than  himself  was  in  posses- 
sion and  held  same  at  commencement  of  the  action.  Pitts  Ag'l  Works  v. 
Young,  ....  S.  D 62  N.  W.  432;  Timp  v.  Dockham,  32  Wis.  146;  Ken- 
nedy V.  Shaw,  38  Ind.  474;  Griffin  v.  R.  R.  Co.,  101  N.  Y.  348,  4  N.  E.  740; 
Hinchman  v.  Doak,  48  Mich.  168,  12  N.  W.  39.  Presumptively  Taken  from 
Defendant.  When,  however,  the  property  is  taken  by  the  officer  under  his 
process,  the  presumption  is  that  it  was  taken  from  defendant's  possession, 
and  this  presumption  can  only  be  overcome  by  evidence  on  part  of  defendant 
that  he  did  not  have  jjossession  at  commencement  of  the  action.  Pitts  Ag'l 
Works  V.  Young,  supra;  Timp  v.  Dockham,  supra;  Willis  v.  DeWitt,  3S.  D. 


44  CODE  OF  CIVIL  PROCEDURE. 

281,  62  N.  W.  1090;  and  a  verdict  finding  all  issues  in  favor  of  defendant  will 
ordinarily  be  construed  with  reference  to  this  presumption,  and  not  as  find- 
ing that  defendant  was  not  in  possession  at  commencement  of  the  action. 
Pitts  Ag'l  Works  v.  Young,  supra;  Hinchman  v.  Doak,  48  Mich.  168,  12  N. 
W.  39.  Plea  of  Property— Judgment.  The  rule  seems  to  be  well  settled 
that  when  defendant  pleads  property  in  himself  or  a  stranger,  or  traverses 
plaintiff's  right  to  possession,  if  he  prevails  in  the  action  he  will  be  entitled 
to  judgment  for  the  return  of  the  property,  or  its  value  if  return  cannot  be 
had.  Pitts  Ag'l  Works  v.  Young,  supra;  Witham  v.  Witham,  57  Me.  447; 
Quincy  v.  Hall,  1  Pick.  357;  Ingraham  v.  Hammond,  1  Hill  353;  Harrison  v. 
Mcintosh,  10  John.  380;  Prosser  v.  Woodward,  21  Wend.  209;  Pico  v.  Pico, 
66  Cal.  455;  Williams  v.  Kessler,  82  Ind.  184;  Griffin  v.  R.  R.  Co.,  101  N.  Y. 
348,  4  N.  E.  740. 

VERDICT— ENTRY  OF.  §  5064  Comp.  Laws;  §  5448  Rev. 
Codes  N.  D.  Upon  receiving  a  verdict  an  entry  must  be  made 
by  the  clerk  in  the  minutes  of  the  court,  specifying  the  time  of 
trial,  the  names  of  the  jurors  and  witnesses,  and  setting  out  the 
verdict  at  length;  and  where  a  special  verdict  is  found,  either 
the  judgment  rendered  thereon,  or,  if  the  case  be  reserved  for 
argument  or  further  consideration,  the  order  thus  reserving  it. 

Sec.  264  C.  C.  P.  Levisee  p.  78;  Wait's  Code  §  264;  Harst  Pr.  Deer. 
Code  §  628. 

Consult  decisions  under  sees,  5048,  5059,  5061,  Comp.  Laws;  sec.  5432, 
6443,  5445,  Rev.  Codes  N.  D. 

Judgment  Dismissing— Partner.  Where  in  an  action  against  a  firm 
composed  of  two  persons,  the  jury  renders  a  general  verdict  only,  in  favor  of 
plaintiff  and  against  defendant,  it  is  error  for  the  court,  while  such  verdict 
remains  of  record,  to  render  judgment  against  the  plaintiff  dismissing  the 
action  as  to  one  member  of  the  firm,  with  costs.  Kellogg,  Johnson  &  Co.  v. 
Oilman  et  al.,  3  N.  D.  538,  58  N.  W.  339.  Sureties— Judgment.  In  an  ac- 
tion upon  a  county  treasurer's  bond,  in  which  bond  the  sureties  bound  them- 
selves in  the  amount  set  opposite  their  respective  names,  each  signing  for  a 
less  amount  than  the  penal  sum,  the  principal  made  no  answer,  and  the  sure- 
ties answered  setting  up  a  common  defense.  The  verdict  was  "for  the  plain- 
tiff on  all  the  issues,  and  assess  plaintiff's  damages  at  ten  thousand  dollars." 
The  court  entered  judgment  thereon  against  the  principal  for  $10,000  (the 
penal  sum)  and  against  each  surety  for  the  amount  set  opposite  his  name. 
Held^  under  sec.  4901  Comp.  Laws,  no  error  of  which  the  sureties  could  com- 
plain.     Custer  Co.  v.  Alvien, S.  D ,  64  N,  W.  533;  People  v.  Love, 

25  Cal.  620;  Pom.  Rem.  &  Rem.  Rights  sec.  406.  Advisory  Answers — 
Judgment.  When,  upon  trial  in  the  circuit  court  on  appeal  from  probate 
court,  questions  of  fact  are  submitted  to  a  jury,  whose  answers,  though  only 


OP  THE  TRIAL  BY  THE  COURT,  45 

advisory,  are  referred  to  in  the  judgment  as  "duly  considered,"  without  any 
intimation  of  dissatisfaction  with  them,  and  no  other  or  different  findings 
are  found  in  the  record  or  claimed  to  have  been  made,  it  will  be  understood 
that  the  judgment  was  based  upon  such  findings  of  the  jury.  Engle  v. 
Yorks,  . . . .  S.  D ,  64  N.  W.  132. 


CHAPTER  V. 


Art.  6,  Chap.  12,  Code  op  Civil  Procedure. 
of  the  triaii  by  the  court. 
HOW  JURY  WAIVED.  §  5065  Comp.  Laws;  §  5449  Rev. 
Codes  N.  D.  Trial  by  jury  may  be  waived  by  the  several  par- 
ties to  an  issue  of  fact  in  actions  arising  on  contract,  or  for  the 
recovery  of  specific  real  or  personal  property,  with  or  without 
damages,  and  with  the  assent  of  the  court  in  other  actions,  in 
manner  following: 

1.  By  failing  to  appear  at  the  trial. 

2.  By  written  consent,  in  person  or  by  attorney,  filed  with 
the  clerk. 

3.  By  oral  consent,  in  open  court,  entered  in  the  minutes. 
Sec.  265  C.  C.  P.;  Levisee  p.  79;  Wait's  Code  §266;  Harst  Pr.  Deer. 

Code  §631. 

Consult  sec.  5032,  Comp.  Laws;  sec.  5420  Rev.  Codes  N.  D.,  and  decis-. 
ions  thereunder.  Also,  the  constitutional  provisions  in  South  and  North 
Dakota,  set  forth  under  sec.  5058  Comp.  Laws;  also  decisions  under  sec.  5048 
Comp.  Laws;  sec.  5432  Rev.  Codes  N.  D. 

Question  for  Jury — Waiver.  Where  the  court,  upon  a  trial  to  a  jury 
assumes  that  a  certain  fact  was  proven,  and  if  such  question  was  one  of  fact 
for  the  jury,  appellant  waived  its  submission  to  the  jury  by  treating  the 
case  as  presenting  questions  of  law  only,  and  moving  the  court  to  direct  a 
verdict  in  its  favor,  and  making  no  claim  or  request  to  have  the  case  sub- 
mitted to  the  jury.  Grigsby  v.  Western  Union  Tel.  Co.,  5  S.  D.  561,  59  N. 
W.  734;  Barnes  v.  Perine,  12  N.  Y.  18;  Winchell  v.  Hicks,  18  N.  Y.  565; 
Leggett  V.  Hyde,  58  N.  Y.  275.  Where,  at  the  close  of  plaintiff's  evidence, 
defendant  moves  for  verdict  in  his  favor,  which  is  denied,  and,  no  evidence 
being  offered  by  defendant,  the  court  on  motion  dii'ects  a  verdict  for  plain- 
tiff, defendant  not  requesting  the  court  to  submit  the  case  to  the  jury,  it  is 
not  error  for  the  court  to  direct  a  verdict  for  plaintiff,  if  there  was  sufficient 


46  CODE  OF  CIVIL  PROCEDURE. 

evidence  to  support  that  verdict.  Yankton  Fire  Ins.  Co,  v.  Freemont,  E. 
&  M.  V.  R.  Co.,  ....  S.  D.  64  N.  W.  514;  Dillon  v.  Cockroft,  90  N.  Y.  649; 
Ormes  v.  Dauchy,  82  N.  Y.  445;  O'Neill  v.  James,  43  N.  Y.  84;  Trustees  v. 
Kirk,  68  N.  Y.  459;  Grigsby  v.  Western  U.  Tel.  Co.,  5  S.  D.  561,  59  N.  W. 
734.  The  court,  in  the  Yankton  Fire  Ins.  Co.  v.  Ry.  Co.  case,  supra,  cite 
with  approval  the  following  language  from  Dillon  v.  Cockroft,  supra:  "It 
is  well  settled  that  where  the  defendant  moves  for  a  nonsuit,  or  rests  his  de- 
fense upon  questions  of  law,  and  does  not  request  to  go  to  the  jury,  and  his 
motion  is  denied,  or  the  law  held  adversely  to  him,  he  is  estopped  from 
raising  the  point  upon  appeal,  that  there  were  questions  of  fact  which 
would  have  been  passed  upon  by  the  jury." 

WHEN  DECISION  GIVEN.  §  5066  Comp.  Laws.  Upon  the 
trial  of  a  question  of  fact  by  the  court,  its  decision  must  be 
given  in  writing  and  filed  with  the  clerk  within  thirty  days  af- 
ter the  cause  is  submitted  for  decision,  and  upon  a  trial  of  a 
question  of  law  the  decision  must  be  given  by  the  court  at  the 
time  the  question  is  submitted  for  decision  or  within  fifteen 
days  thereafter,  and  no  judgment  shall  be  rendered  or  entered 
until  after  the  filing  of  such  decision.  (As  Am'd.  1887,  chap. 
25,  sec.  1,  as  Am'd.  1893  chap.  72,  S.  D.) 

SAME.  §  5449  Rev.  Codes  N.  D.  All  motions  or  applica- 
tions in  any  action,  special  proceeding  or  other  matter  in 
the  district  court  must  be  decided  and  such  decision  reduced  to 
writing  and  filed  with  the  clerk  within  thirty  days  after  the 
same  shall  have  been  submitted  to  the  court  for  decision,  unless 
prevented  by  the  sickness  of  the  judge  whose  duty  it  is  to  de- 
cide the  same  or  by  other  unavoidable  casualty,  and  upon,  the 
trial  of  any  question  or  issue  of  fact  by  the  court  its  decision 
thereon  and  conclusions  of  law  upon  such  decision,  and  direc- 
tion for  entry  of  judgment  in  accordance  with  such  conclusions 
must  be  given  in  writing  and  filed  with  the  clerk  within  sixty 
days  after  the  cause  has  been  submitted  for  decision,  unless 
such  is  prevented  for  the  reasbn  hereinbefore  stated,  and  judg- 
ment shall  be  entered  by  the  clerk  in  accordance  with  such  di- 
rection upon  the  application  of  the  party  entitled  thereto  and 
the  filing  of  such  decision  and  conclusions  of  law.  Each  judge 
of  the  district  court  shall  not  less  than  five  nor  more  than 
fifteen  days  before  each  quarterly  installment  of  his  salary  be- 


OF  THE  TRIAL  BY  THE  COURT.  47 

come  due  file  in  the  office  of  the  auditor  of  the  state  a  certificate 
under  his  hand  stating  in  effect  that  no  motion,  application  or 
question  or  issue  ot  fact  submitted  to  him  remains  undecided 
contrary  to  the  provisions  of  this  section.  And  in  case  any 
such  decision  has  been  prevented  by  any  of  the  causes  enumer- 
ated in  this  section,  such  certificates  shall  state  the  facts  con- 
stituting the  cause  of  such  prevention,  and  the  state  auditor  is 
hereby  directed  not  to  sign  or  issue  any  warrant  for  the  pay- 
ment of  any  quarterly  installment  of  salary  to  any  judge  of  the 
district  court  until  after  such  judge  shall  have  filed  such  cer- 
tificate as  herein  provided.  (As  amended,  sec.  1,  chap,  89, 
Laws  1893,  N.  D. ) 

Sec.  266  C.  C,  P.;  Levisee  p.  79;  Wait's  Code,  §  267  iHarst.  Pr.,  Deer. 
Code,  §  632. 

Consult  decisions  under  three  following  sections;  also  decisions  under 
sec.  5067,  5068,  5069  Comp.  Laws;  sec.  5451,  5452,  5453,  Rev.  Codes  N.  D. 

1.  Filing'  Decision  Mandatory.  Sec.  5066  Comp.  Laws  is  mandatory 
and  not  merely  directory,  relative  to  the  fillBg  of  the  decision.  That  such 
is  the  legislative  intent  is  emphasized  by  the  amendment  (sec.  1,  ch.  25, 
Sess.  Laws  1887)  declaring  "no  judgment  shall  be  rendered  or  entered  until 
after  the  filing  of  such  decision."  Gaar,  Scott  &  Co.  v.  Spaulding,  2 
N.  O.  414,  51  N.  W.  867.  "Waiver.  Where  the  trial  is  to  the  court,  it 
would  be  irregular,  and  reversible  error  to  enter  judgment  without  first 
filing  the  decision  of  the  trial  court,  where  non-waiver  of  findings  appears 
afhrmatively  from  the  record.  In  such  case  the  judgment  would  be  illegally 
entered,  and  invalid  on  its  face.  But  the  mere  absence  of  a  waiver  from  the 
judgment  roll  does  not  show  error  affirmatively.  Such  waiver  would  not  be 
part  of  the  statutory  roll;  and,  in  absence  of  a  bill  or  statement  showing  the 
waiver  of  record,  this  coui't  will  presume  in  support  of  the  judgment,  the 
contrary  not  appearing  of  record,  that  a  waiver  of  findings  was  made  and 
filed  in  the  court  below.  Gaar,  Scott  &  Co.  v.  Spalding,  supra;  Thomas  v. 
Tanner,  14  How.  Pr.  426;  Reich  v.  Mining  Co.  (Utah),  2  Pac.  703;  Hayne 
New  Tr.  &  App.  p.  690,  721,  722;  Mulcahy  v.  Glazier,  51  Cal.  626;  Smith  v. 
Lawrence,  53  Cal.  34;  Carr  v.  Cronin,  54  Cal.  600.  Where  the  trial  court 
determines  the  if  sues  of  fact  without  a  jury  the  statutory  requirement  as  to 
findings  is  mandatory,  and  not  directory.  Gull  River  Lum.  Co.  v.  School 
Dist.  No.  39  of  Barnes  Co.,  1  N.  D.  500,  48  N.  W.  427.  Separate  Signing. 
Where  the  record  shows  that  the  findings  of  fact  and  conclusions  of  law  are 
made  by  the  court  part  ot  the  judgment  I'oll,  preliminary  to  the  judgment, 
in  which  they  are  referred  to,  and  are  preceded  by  the  declaration,  "I  make 
and  file  the  following:  findings  of  fact  and  conclusions  of  law,"  it  is  no  objec' 


48  CODE  OF  CIVIL  PROCEDURE. 

tion  to  such  findings  and  conclusions  that  they  are  not  separately  signed  by 
the  judge,  whose  signature  appears  only  at  the  close  of  the  judgment.  Nat. 
Tube  Works  Co.  v.  City  of  Chamberlain,  o  Dak.  54,  37  N.  W.  761. 

2.  Findings  and  Conclusions  Unnecessary  When.  In  an  action  to 
foreclose  a  mechanic's  lien,  in  a  case  in  which  no  answer  was  filed  nor  issue 
of  fact  tried,  the  supreme  court  of  South  Dakota,  in  deciding  that  the  trial 
court  is  not  required  to  find  the  facts  or  state  its  conclusions  of  law  before 
entering  judgment,  upon  an  assignment  of  error  that  the  trial  court  failed 
to  make  and  file  its  decision  in  writing  before  entry  of  judgment,  held,  that 
no  decision  in  writing  was  required  in  that  case;  and  in  passing  upon  this 
and  the  two  succeeding  sections  of  the  Code,  say:  "These  sections  were  ev- 
idently designed  to  apply  only  to  the  trial  of  issues  of  fact  raised  by  the  plead- 
ings and  not  to  cases  in  which  there  are  no  issues  of  fact  tried, "  Cole  v.  Custer 
Co.  Ag'l,  Mineral  &  Stock  Ass'n,  3  S.  D.  272,  52  N.  W.  1086.  Admissions- 
No  Finding^s.  In  an  action  at  law  tried  to  the  court  without  a  jury,  mater- 
ial issues  tendered  by  the  complaint,  and  admitted  or  not  denied  in  the  an- 
swer, require  no  findings  of  fact.      Anderson  v.  Alseth  (on  rehearing), 

S.  D ,  66  N.  W.  320;  Parker  v.  Bank,  3  N,  D.  37,  54  N,  W.  313;  Humpf- 

ner  v.  D.  M.  Osborne  &  Co.,  2  S.  D.  310,  50  N.  W.  88;  Barto  v.  Himrod,  8  N. 
Y.  483;  Fox  v.  Fox,  25  Cal.  687;  Swift  v.  Muygridge,  8  Cal.  445.  Immater- 
ial Findings— Judgment.  In  the  case  of  Jackson  v.  Mayor,  etc.,  of  Ellen- 
dale,  4  N.  D.  478,  61  N.  W.  1030,  the  findings  of  fact  of  the  trial  court,  in- 
volving liability  for  the  expense  of  putting  in  connections  with  a  street  wa- 
ter main,  were  held  suflBcient  to  warrant  the  judgment  appealed  from.  The 
court  say:  "The  only  attack  upon  the  findings  is  with  respect  to  a  matter 
which  may  be  eliminated  from  the  findings  without  affecting  the  judgment. 
These  alleged  trrors  are  therefore  not  prejudicial." 

Immaterial  Evidence.  Where  a  case  is  tried  without  a  jury,  and  im- 
material and  incompetent  evidence  has  been  admitted  over  valid  objection, 
such  evidence  requires  no  specific  finding  of  fact,  and  it  is  not  prejudicial 

error  to  disregard  it.     Martin  v.  Minnekahta  State  Bank, S.  D ,64 

N.  W.  127.  Findings  Nunc  pro  Tunc.  A  court  who  tries  issues  of  fact  and 
makes  findings  and  conclusions  of  law,  which  are  concurrently  filed  with  the 
judgment  based  thereon,  has  power  to  seasonably  make  additional  though 
entirely  consistent  findings,  conforming  more  specifically  to  the  decision  as 
orally  announced  at  the  conclusion  of  the  trial,  and  to  file  the  same  as  of  the 
date  the  original  findings  were  filed  and  entered.     Martin  v.  Minnekahta 

State  Bank,     . . .  S.  D ,  64  N.  W.  127;  Comp.  Laws  sees.  4938,  4939, 4941; 

Ins.  Co.  V.  Boon,  95  U.  S.  117;  Williams  v.  Ely,  IS-Wis.  1;  M'f'gCo.  v.  Ad- 
ams, (Minn.),  50  N.  W.  360.  Findings  Presumptively  Bight.  Findings  of 
the  trial  court  on  disputed  questions  of  fact  are  always  presumptively  right, 
and  though  under  our  statute  not  as  controlling  upon  this  court  as  the  verdict 
of  a  jury,  must  stand,  unless  the  evidence  clearly  preponderates  against 
them.     Feldman  v,    Trumbower,    S.    D ,    64    N.    W.    189. 


OF  THE  TRIAL  BY  THE  COURT.  49 

Duty  of  Clerk — "Decision."  It  is  the  duty  of  the  clerk  in  cases  tried  by  the 
court  without  a  jury,  to  annex  the  decision  of  the  trial  court  to  the  judg- 
ment roll;  and  where  in  such  case,  no  decision  is  found  in  the  record  trans- 
mitted to  this  court  on  appeal,  it  will  be  presumed,  in  absence  of  explana- 
tion, that  no  decision  was  made  or  filed  in  the  court  below.  A  decision  is  a 
paper  "which  involves  the  merits,  and  necessarily  effects  the  judgment," 
and  hence  forms  a  part  of  the  statutory  judgment  roll,  unless  findings  are 
waived  in  writing  filed  with  the  clerk,  under  sec.  5068.  Gaar,  Scott  &  Co. 
V.  Spalding,  2  N.  D.  414,  51  N.  W.  867;  Dowd  v.  Clark,  51  Cal.  263;  Gull 
River  Lum.  Co.  v.  School-Dist.,  1  N.  D.  500,  48 N.  W.  427.  A  decision  is 
a  written  statement  of  the  court's  findings  of  fact  and  conclusions  of  law. 
DeLendrecie  v.  Peck,  1  N.  D.  422,  48  N.  W.  342. 

SEPARATELY  STATED.  §  5067  Comp.  Laws;  §  5451  Rev. 
Codes  N.  D.  In  giving  the  decision  the  facts  found  and  the 
conclusions  must  be  separately  stated.  Judgment  upon  the 
decision  must  be  entered  accordingly. 

Sec.  267  C.  C.  P.;  Levisee,  p.  79;  Wait's  Code  §  267;  Harst.  Pr.  Deer. 
Code  'i  633. 

Consult  also  decisions  under  sections  6066,  5068,  5069,  Comp.  Laws;  sec- 
tions 5450,  5452,  5453,  Rev.  Codes  N.  D. 

1.  Conclusions  and  Judgment  Distinct.  In  an  action  in  equity  to  set 
aside  certain  foreclosure  proceedings  by  advertisement,  the  trial  being  to 
the  court,  the  court  say,  relative  to  the  state  of  the  record  as  to  the  conclu- 
sions of  law  in  that  case:  "The  conclusions  of  law  reached  by  the  trial 
court  and  the  formal  judgment  are  thrown  together  in  one  instrument. 
This  we  think  is  bad  practice.  The  statute  requires  the  judgment  to  be  en- 
tered in  the  judgment  book.  This  practice  compels  clerks  of  district  courts 
to  enter  the  conclusions  of  law  as  a  part  of  the  judgment.  This  is  a  useless 
incumbrance  of  the  record,  and  one  never  contemplated  by  the  statute. 
Trial  courts  should  see  to  it  that  attorneys  in  preparing  their  conclusions  of 
law  and  final  judgments  keep  the  two  entirely  distinct."  Johnson  v.  Day 
et  al.,  2  N.  D.  295,  50  N.  W.  701.  Findings  Mandatory,  When.  Where 
the  trial  court  determines  the  issues  of  fact  without  a  jui*y,  the  requirement 
of  the  statute  as  to  findings  is  mandatory,  and  not  directory.  Gull  River 
Lum.  Co.  V.  School  Dist.,  1  N.  D.  500,  48  N.  W.  427. 

3.  Immaterial  Findings.  Immaterial  findings  which  are  not  the 
basis  of  the  judgment,  other  sufficient  findings  appearing  of  record,  will  not 
vitiate  the  judgment  or  cause  its  reversal.  Caledonia  Gold  Min.  Co.  v.  Noo- 
nan  et  al  ,  3  Dak.  189,  14  N.  W.  426;  Golden  Terra  Mining  Co.  v.  Smith  et 
al.,  2  Dak.  377,  11  N.  W.  97;  (French  v.  Lancaster,  2  Dak.  276,  9  N.  W.  716, 
distinguished.)  A  judgment  will  not  be  reversed  by  reason  of  the  failure  of 
the  trial  court  to  make  a  finding  upon  a  particular  point  in  a  case  where  the 
4— TP 


50  CODE  OF  CIVIL  PROCEDURE. 

result  could  not  have  been  different  if  the  court  had  found  the  fact  exactly 
as  alleged  by  such  party.  Joslyn  v.  Smith  et  al.,  2  N.  D.  58,  49  N.  W.  382. 
Finding  Foreign  to  Issue.  In  an  action  by  one  claiming  as  owner  of  land 
to  restrain  a  sheriff  from  selling  it  under  execution  against  plaintiff's 
grantor,  the  answer  alleging  the  deed  from  plaintiff's  grantor  was  fraudu- 
lently made  with  plaintiff's  knowledge  for  the  purpose  of  placing  the  prop- 
erty beyond  the  reach  of  grantor's  creditors,  the  abstract  showing  that  the 
case  was  tried  and  submitted  upon  that  issue,  the  evidence  not  being  re- 
turned, held,  that  a  finding  of  the  trial  court  that  such  deed  constitutes  a 
mortgage  in  plaintiff's  favor  to  secure  him  for  the  amount  which  the  court 
finds  was  paid  by  him  to  his  grantor  is  outside  of,  and  foreign  to  the  issues 
litigated  and  submitted  for  decision.  Harkins  v.  Cooley  et  al.,  5  S.  D.  227, 
58  N.  W.  560;  City  of  Winona  v.  Minn.  Ry.  Const.  Co.,  27  Minn.  427,  6  N.  W. 
795  and  8  N.  W.  148;  Mondran  v.  Goux,  51  Cal.  151;  Morenhout  v.  Barron, 
42  Cal.  605;  Devoe  v.  Devoe,  51  Cal.  543;  Gregory  v.  Nelson,  41  Cal.  278;  and 
a  judgment  based  upon  such  finding  cannot  be  sustained.     Id.     Findings 

Supported— Materiality.     In  Stone  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co S.  D. 

....,  65  N.  W.  29,  involving  the  question  of  liability  of  the  defendant  Ry. 
Co.  for  the  value  of  a  shipment  of  cattle  delivered  by  it  to  a  third  party,  and 
involving  also  the  question  whether  the  party  to  whom  they  were  thus  de- 
livered received  them  as  owners  or  as  security,  it  was  held,  under  the  facts 
there  appearing,  that  the  findings  of  the  trial  court  were  sustained  by  the 
evidence;  held,  also,  that  in  view  of  other  findings  which  were  material  and 
which  supported  the  Judgment,  a  particular  finding  objected  to 
was  immaterial  and  could  not  affect  the  decision  of  the  trial  court. 
Inconsistent  Findings.  Where  the  several  findings  of  the  trial  court 
were  inconsistent  with  each  other  upon  the  pomt  whether  the  contract  in 
question  was  made  for  and  intended  only  to  bind  the  defendant,  and  that  the 
improvements  upon  the  homestead  were  made  upon  his  credit,  and  such 
findings  were  inconsistent  with  the  theory  either  that  the  contract  was  that 
of  the  wife,  in  whose  name  the  homestead  stood,  or  that  of  the  co-defendant, 
her  husband,  or  the  joint  contract  of  both,  a  judgment  for  plaintiff  upon 
6uch  findings  should  be  reversed  and  the  case  remanded  for  a  retrial;  so 
lield  in  an  action  to  foreclose  a  mechanic's  lien.  Cawley  et  al  v.  Day  et  al,  4 
S.  D.  221,  56  N.  W.  749;  Ziegler  v.  Galvin,  45  Hun.  44;  Huntley  v.  Holt,  58, 
Ct.  446,  20  Alt.  469;  Lyon  v.  Champion  (Ct  ),  25  Alt.  392.  Ambiguous 
Finding.  In  construing  an  ambiguous  finding  of  fact  made  by  the  trial 
court  the  appellate  court  may  consider  all  the  findings  in  order  to  determine 
what  is  intended;  it  is  the  duty  of  the  latter  court,  when  it  can  be  done 
without  violence  to  the  language  used,  to  so  construe  a  finding  as  to  support 
a  conclusion  of  law  that  follows.  Moore  v.  Booker  et  al,  4  N.  D.  543,  62  N. 
W.  607.  Must  Support  Judgment.  Findings  of  the  court  must  be  suffi- 
cient to  support  the  judgment;  and  when,  in  an  action  under  chap.  88,  Laws 
1889,  the  court  failed  to  find  that  the  plaintiff's  assignor  owned  and  operated 


OF  THE  TRIAL  BY  THE  COURT.  51 

the  threshing  machine  with  which  the  grain  was  threshed,  and  that  the 
lien  filed  contained  the  statement  of  facts  required  by  sec.  3  of  the  act,  such 

findings  are  insufficient  to  sustain  the  judgment.     Anderson  v.  Alseth, 

S.  D ,  62  N.  W.  435;  Holt  v.  VanEpps,  1  Dak.  206,  46  N.  W.  689;  Dole 

V.  Burleigh,  1  Dak.  227,  46  N.  W.  692;  Parker  v.  Bank,  3  N.  D.  87,  54  N. 
W.  313;  Rugg  V.  Hoover,  28  Minn.  407,  10  N.  W.  473;  Lavin  v.  Bradley,  1 
N.  D.  291,  47  N.  W.  384.  Findings  Sustained  When.  While  under  our 
statute  this  court  will  review  questions  of  fact  tried  by  the  lower  court  with- 
out a  jury,  the  findings  of  the  trial  court  will  not  be  disturbed,  unless  the 
evidence  manifestly  preponderates  against  them.  Evenson  v.  Webster, 
(on  rehearing)  5  S.  D.  266,  58  N.  W.  669. 

3.  Judgment — Entry — Notice.  It  would  seem  that  judgments  may  be 
entered,  except  in  cases  where  the  statute  otherwise  specially  directed,  with- 
out notice  or  other  formalities  than  the  simple  direction  of  the  court,  or  of 
the  judge  at  chambers.  There  seems  to  be  no  necessity  for  such  notice  or- 
dinarily. None  is  expressly  required  in  cases  tried  by  the  court.  Sec.  5067 
Comp.  Laws;  Gould  v.  Duluth  &  D.  El.  Co.,  3  N.  D.  96,  (101),  54  N.  W.  316 
(318).  Clerk's  Duty — File  Decision.  It  is  the  duty  of  the  clerk  of  the  dist- 
rict court,  in  cases  tried  to  the  court,  to  annex  the  decision  to  the  judgment 
roll;  and  it  would  be  reversible  error  to  enter  judgment  without  first  filing 
the  decision,  where  non-waiver  of  findings  appears  affirmatively  from  the 
record.  Gaar,  Scott  &  Co,  v.  Spalding,  2  N.  D.  414,  51  N.  W.  867.  Review 
— New  Trial — Ballots.  Where,  in  an  election  contest  case,  the  question  is 
the  legal  effect  of  certain  ballots  then  before  the  court,  to  be  gathered  from 
the  ballots  themselves  without  aliunde  evidence,  the  question  is  one  of  law 
and  not  of  fact;  and  the  decision  of  the  trial  court  upon  such  question  of  law 
may  be  reviewed  in  this  court  without  a  motion  for  a  new  trial.      Le  Claire 

V.  Wells,  . . . .  S.  D 64  N.  W.  519;    Mercantile  Co.  v.  Faris,  5  S.  D.  348, 

58  N.  W.  813.  What  Reviewed  on  Appeal.  It  not  appearing  in  this  case 
that  a  motion  for  a  new  trial  was  made  in  the  court  below,  this  court  will 
not  review  the  evidence  to  determine  its  sufficiency  to  support  the  findings, 
and  will  only  consider  on  this  appeal  the  question  of  the  sufficiency  of  the 
findings  to  sustain  the  judgment.  Evenson  v.  Webster,  3  S.  D.  382,  53N.W. 
747;  following  Pierce  v.  Manning,  2  S.  D.  517,  51  N.  W.  332. 

FINDINGS  WAIVED  HOUR.  §  5068  Comp.  Laws;  §  5452  Rev. 
Codes  N.  D.  Findings  of  fact  may  be  waived  by  the  several 
parties  to  an  issue  of  fact: 

1.  By  failing  to  appear  at  the  trial. 

2.  By  consent  in  writing,  filed  with  the  clerk. 
Sec.  268  C.  C.  P.;  Levisee  p.  79;  Harst  Pr.  Deer,  Code  I  634. 
Consult  also  decisions  under  preceding  section. 

Court  Must  Make  Findings,     Upon  trial  to  the  court  it  is  the  duty  of 


52  CODE  OF  CIVIL  PROCEDURE. 

the  court  without  request  to  make  express  findings  of  the  ultimate  facts 
which  are  material  and  arise  upon  the  pleadings;  and  the  adoption  of  certain 
documentary  evidence,  and  a  certain  stipulation  of  facts,  as  findings,  and 
upon  which  findings  certain  legal  conclusions,  upon  which  judgment  was  en- 
tered, were  drawn,  is  reversible  error.  Gull  River  Lum.  Co.  v.  School  Dist. 
No.  39,  1  N.  D.  500.  48  N.  W.  427.  Waiver— Presumption.  As  the  statute 
allows  parties  to  waive  findings  by  the  court,  a  waiver  will  be  presumed  un- 
less the  fact  of  non-waiver  is  shown  by  the  record.      Chandler  v.  Kennedy, 

S.  D ,  65  N.  W.  439;  Smith  v.  Lawrence,  53  Cal.  34;  Mulcahy  v. 

Glazier,  51  Cal.  626;  Carr  v.  Cronan,  54  Cal.  600;  Reynolds  v.  Brumagin,  Id. 
254. 

PREPARATION  OF  FINDINGS.  §  5069  Comp.  Laws;  §  5453 
Rev.  Codes  N.  D.  At  the  time  the  cause  is  submitted  the  judge 
may  direct  either  or  both  parties  to  prepare  findings  of  facts 
unless  they  have  been  waived,  and  when  so  directed  the  party 
must  within  two  days  prepare  and  serve  upon  his  adversary, 
and  submit  to  the  judge  such  findings,  and  may,  within  two 
days  thereafter,  briefly  suggest  in  writing  to  the  judge  why  he 
desires  findings  upon  the  points  included  within  the  findings 
prepared  by  himself,  or  why  he  objects  to  findings  upon  the 
points  included  within  the  findings  prepared  by  his  adversary. 
The  judge  may  adopt,  modify,  or  reject  the  findings  so  submit- 
ted. If,  at  the  time  of  the  submission  of  the  cause,  the  judge 
does  not  direct  the  preparation  of  findings,  or  those  prepared 
are  rejected,  then  he  must  himself  prepare  the  findings. 

Sec.  269  C.  C.  P.;  Levisee  p.  80. 

Consult  decisions  under  the  three  preceding  sections. 

Find  Ultimate  Facts — Request.  It  is  the  duty  of  the  court,  upon  trial 
to  the  court,  to^make  express  findings  of  the  ultimate  facts  in  issue,  without 
request.  Gull  River  Lum.  Co.  v.  School  Dist.  No.  39,  1  N.  D.  500,  48  N.  W. 
427.  In  the  case  cited  the  court  say:  "Findings  were  not  waived,  nor  did 
the  district  court  exercise  its  right  to  require  counsel  to  frame  and  present 
proposed  findings  to  the  court.  Prudent  practitioners  ofteu  volunteer  and 
present  proposed  findings  to  the  court,  but  this  was  not  done  in  this  case; 
nor  does  the  statute  or  rules  of  practice  require  it  to  be  done  in  any  case. 
Findings  not  having  been  required  by  the  court  nor  voluntarily  presented  by 
counsel,  the  duty  of  preparing  and  signing  findings  of  fact  and  of  law  is  one 
which  the  statute  expressly^devolves  upon  the  court  itself.  The  statutory 
requirement  is  explicit  and  positive  in  its  terms;  and  the  courts  of  other 
states,  where  substantially  the  same  provisions  are  found,  have  uniformly 
construed  the  language  as  being  mandatory,  and  not  directory  merely.  Such 


OF  REFERENCES  AND  TRIALS  BY  REFEREES.        53 

construction  accords  with  our  own  views.  To  hold  that  the  statute  is  direc- 
tory only  would,  in  our  opinion,  impair  its  efficiency,"  citing  Hayne  New  Tr. 
&  App.  sec.  238,  239;  People  v.  Forbes,  51  Cal.  628;  Billings  v.  Everett,  52 
Cal.  661;  Speegle  v.  Leese,  51  Cal.  415;  Johnson  v.  Squii-es,  53  Cal.  37;  Bank 
of  Woodland  v.  Treadwell,  55  Cal.  380;  Harlan  v.  Ely,  Id.  344.  Additional 
—Nunc  pro  Tunc.  A  court  who  tries  issues  of  fact  and  makes  its  findings 
and  conclusions  of  law,  which  are  concurrently  filed  with  the  judgment 
based  thereon,  has  power  to  seasonably  make  additional  though  entirely  con- 
sistent findings,  conforming  more  specifically  to  the  decision  as  orally  an- 
nounced at  the  conclusion  of  the  trial,  and  to  file  the  same  as  of  the  date  the 
original  findings  wei*e  filed  and  entered.  Martin  v.  Minnekahta  State  Bank, 
. . . .  S.  D.  . . .  ,  64  N.  W.  127;  Comp.  Laws  sec.  4938,  4939,  4941;  Ins.  Co.  v. 
Boon,  95  U.  S.  117;  Williams  v.  Ely,  13  Wis.  1;  M'f'g  Co.  v.  Adams  (Minn.), 
50  N.  W.  360. 

JUDGMENT— ISSUE  OF  LAW.  §  5070  Comp.  Laws;  §  5454 
Rev.  Codes  N.  D.  On  a  judgment  for  the  plaintiff  upon  an  is- 
sue of  law,  he  may  proceed  in  the  manner  prescribed  by  the 
first  two  subdivisions  of  section  5025,  upon  the  failure  of  the  de- 
fendant.to  answer.  If  judgment  be  for  the  defendant  upon  an  is- 
sue of  law,  and  the  taking  of  an  account,  or  the  proof  of  any  fact 
be  necessary,  to  enable  the  court  to  complete  the  judgment,  a 
reference  may  be  ordered  as  in  that  section  provided. 

[Sec.  5454  Rev,  Codes  N.  D.,  is  the  same  as  the  above,  except  that 
where  sec.  5070,  Comp.  Laws,  refers  to  sec.  5025  Comp.  Laws,  the  North  Da- 
kota section  refers  to  the  correspouding  section  of  that  Code.  (Sec.  5413 
Rev.  Codes.)     (Am'd  Rev.  Com'rs.)] 

Sec.  270  C.  C.  P.;  Levisee  p.  80;  Wait's  Code  sec.  269;  Harst  Pr.,  Deer. 
Code  §  636. 

Consult  decisions  under  sec.  5031,  5032, 5033  Comp.  Laws;  860.5418,5419, 
5420  Rev.  Codes  N.  D. 


CHAPTER  VI. 


Art.  7,  Chap.  12,  Code  of  Civil  Procedure. 
of  references  and  trials  by  referees. 

[Author's  Note.     Sec.  5071  Comp.  Laws,  as  well  as  several  other  sec- 
tions of  the  same  article  of  the  Code,  was  amended  by  sec.  1,  chap.  112,  Sess. 


54  CODE  OF  CIVIL  PROCEDURE. 

Laws  Dak.  Territory,  1889.  But  this  act  was  repealed  by  sec.  12,  chap.  100, 
Sess.  Laws  S.  D.  1891,  which  latter  act  now  contains  the  existing-  law  upon 
this  subject  in  South  Dakota.  As  the  context  of  the  act  of  1891  seems  to  in- 
dicate that  the  legislature  in  enacting  it  intended  to  substitute  portions  of  it 
for  the  corresponding  sections  of  the  Compiled  Laws,  the  author,  for  the 
purpose  of  preserving  the  identity  of  the  sections  of  the  Compiled  Laws 
throughout  this  work,  has  referred  certain  parts  of  the  provisions  of  the 
legislative  act  of  1891  to  the  corresponding  sections  of  that  compilation;  the 
balance  will  be  referred  to  as  sections  of  the  Act  of  1891.] 

REFERENCE  BY  CONSENT.  §  5071  Comp.  Laws.  A  refer- 
ence may  be  ordered  upon  the  agreement  of  the  parties  filed 
with  the  clerk  or  entered  in  the  minutes. 

1.  To  try  any  or  all  of  the  issues  in  an  action  or  proceeding, 
whether  of  fact  or  law,  and  to  report  a  finding  and  judgment 
thereon. 

2.  To  ascertain  a  fact  necessary  to  enable  the  court  to  de- 
termine an  action  or  proceeding. 

3.  In  all  other  cases  provided  for  reference  by  law.  (Sec. 
1,  chap.  100,  Laws  1891  S.  D. ) 

SAME.  §  5455  Rev.  Codes  N.  D.  All  or  any  of  the  issues 
in  an  action  whether  of  fact  or  law  or  both  may  be  referred  by 
the  court  or  judge  thereof  upon  the  written  consent  of  the  par- 
ties. The  fees  of  referees  shall  be  fixed  by  the  court  and  shall 
in  no  case  exceed  ten  dollars  per  day  except  upon  the  written 
consent  of  both  parties  to  the  reference.  (As  amended,  sec.  1, 
chap.  112,  Laws  Dak.  Am'd.  Rev.  Com'rs. ) 

Sec.  271  C.  C.  p.;  Levisee  p.  80;  Wait's  Code  §  270;  Harst  Pr.  Deer. 
Code  §  638. 

Consult  decisions  under  sec.  5032  Comp.  Laws,  sec.  5420  Rev.  Codes 
N.  D. 

Order  for,  Entered.  Under  the  provisions  of  sec.  1,  chap.  112,  Laws 
1889,  an  order  of  reference  should  be  made  by  the  court  or  judge,  and  en- 
tered of  record;  but  on  appeal  to  this  court,  in  the  absence  of  evidence  in 
the  record  showing  that  such  order  was  not  made,  the  court  will  presume, 
in  support  of  the  judgment,  that  such  an  order  was  duly  made.  Kent.  v. 
Dak.  F.  &  M.  Ins.  Co.,  2  S.  D.  300,  50  N.  W.  85;  Herrick  v.  Butler,  30  Minn. 
156,  14  N.  W.  794;  Blake  v.  Mfg.  Co.,  77  N.  Y.  626;  Reinig  v.  Hecht,  58 
Wis.  212,  16  N.  W.  548;  Credit  Foncier  v.  Rogers,  10  Neb.  184,  4  Neb.  1012; 
Carruthers  V.  Hensley,  (Cal.),  27  Pac.  411.  Evidence  of  Reference.  A  re- 
cital in  the  judgment  that  the  issues  "having  been  duly  and  legally  refer- 


OF  REFERENCES  AND  TRIALS  BY  REFEREES.  55 

red,"  in  the  absence  of  evidence  of  record  countervailing  such  recital,  or  in 
any  manner  tending  to  impeach  it,  will  be  taken  as  true  and  based  upon  suf- 
ficient evidence  before  the  court  below.  Kent  v.  Dak.  F.  «&  M.  Ins.  Co., 
supra;  Reining  v.  Hecht,  supra.  Conclusions,  When  Required — Record. 
By.  sec.  1,  chap.  112,  Laws  1889,  it  is  provided  that  "all  or  any  of  the  issues 
in  an  action,  whether  of  fact  or  law,  or  both,"  may  be  referred.  And  by 
sec.  3  it  is  provided  that  referees  "must  state  the  facts  found  and  their  con- 
clusions of  law  separately."  Held,  construing  the  two  sections  together, 
that  referees  are  only  required  to  state  their  conclusions  of  law  when  all 
the  issues  of  fact  and  law  are  referred.  Held,  further,  that  in  this  case  it 
does  not  appear  what  issues  were  referred,  and  hence  this  court  cannot 
say  that  the  report  did  not  conform  to  the  order  of  reference.  Kent  v.  Dak. 
F.  &  M.  Ins.  Co.,  2  S.  D.  300,  50  N.  W.  85.  Powers  of  Referee— Consent.  An 
order  of  reference  referring  ''the  action"  to  a  referee,  "with  the  usual  pow- 
ers," based  upon  the  consent  of  the  defendant  in  open  court  that  the  case  be 
referred  to  take  the  testimony  and  report,  warrants  the  referee  in  making 
and  reporting  findings  of  fact  and  conclusions  of  law.  Illstad  v,  Anderson, 
2  N.  D.  167,  49  N.  W.  6-59,  construing  sees.  1  and  2,  chap.  112,  Laws  1889. 
Referee  Under  Former  Statute.  A  referee  under  the  statute  fn  force  at 
the  time  of  the  trial  of  this  cause  (Code  provisions  as  amended  in  1889)  was 
an  officer  of  the  court  for  a  specific  purpose;  that  is,  "to  take  testimony," 
"to  ascertain  a  fact,"  or,  it  might  have  been,  to  hear  and  determine  any  or 
all  the  issues  of  fact  in  an  action,  and  to  report  a  finding  of  fact  upon  which 
a  judgment  could  have  been  entered  by  the  court.  To  determine  the  power 
of  the  referee,  the  object  for  which  he  was  appointed,  or  the  nature  of  the 
reference,  must  be  continually  kept  in  view.  Betts  v.  Letcher  et  al,  1  S.  D. 
182,  46  N.  W.  193.  Consent  Presumed.  An  order  of  reference  made  under 
the  statute  as  it  existed  prior  to  1889,  made  upon  due  notice,  the  adverse 
party  not  appearing  at  the  hearing  or  interposing  any  objections  to  the 
making  of  the  order,  and  no  motion  having  been  made  to  vacate  or  set  aside 
the  order,  several  months  elapsing  between  its  date  and  the  hearing,  will 
be  presumed  to  have  been  made  with  the  consent  of  the  opposite  party,  and 

will  be  held  a  valid  and  binding  order.     Jerauld  Co.  v.  Williams  et  al, 

S.  D ,  63  N.  W.    905;   following   Kent  v.    Ins.   Co.,  2  S.   D.  306,  50  N. 

W.  85. 

WITHOUT  CONSENT.  §  5072  Comp.  Laws,  Sec.  5456  Rev. 
Codes  N.  D.  When  the  parties  do  not  consent,  the  court  may, 
upon  the  application  of  either  party,  or  of  its  own  motion  di- 
rect a  reference  in  the  following  cases: 

1.  When  the  trial  of  an  issue  of  fact  requires  the  examin- 
ation of  a  long  account  on  either  side;  in  which  case  the  refer- 
ees may  be  directed  to  hear  and  decide  the  whole  issue,  or  re- 
port upon  any  specific  question  of  fact  involved  therein. 


56  CODE  OF  CIVIL  PROCEDtfRfi. 

2.  When  the  taking  of  an  account  is  necessary  for  the  in- 
formation of  the  court  before  judgment,  or  for  carrying  a  judg- 
ment or  order  into  effect. 

3.  When  it  is  necessary  for  the  information  of  the  court 
in  a  special  proceeding.     (Sec.  2,  chap.  100,  Laws  1891,  S.  D.) 

[Sec.  5456  Rev.  Codes  N.  D.,  is  substantially  the  same  down  to  subdi- 
vision 1.  Subdivision  1  is  the  same  as  in  S.  D.,  except  that  it  uses  the  word 
"referee"  instead  of  "referees;"  and  the  word  "involved"  is  omitted.  Sub- 
division 2  is  the  same  as  in  S.  D.  Subdivision  3  of  Rev.  Codes,  N.  D.  is  as 
follows:  "When  a  question  of  fact  other  than  upon  the  pleadings  shall  arise 
upon  motion  or  otherwise  in  any  stage  of  the  action."  (As  am'd.  sec.  3, 
chap.  112,  Laws  1889.)] 

Sec.  272  C.  C.  P.;  Levisee  p.  80;  Wait's  Code  §  271;  Harst.  Pr.  Deer. 
Code  §  639. 

Consult  decisions  under  preceeding  section,  and  next  section. 

REFERRED  TO  WHOM.  §  5073  Comp.  Laws;  Sec.  5457  Rev. 
Codes  N.  D.  A  reference  may  be  ordered  to  any  person  or 
persons,  not  exceeding  three,  agreed  upon  by  the  parties.  If 
the  parties  do  not  agree  the  court  or  judge  must  appoint  one  or 
more  referees,  not  exceeding  three,  who  reside  within  the  judi- 
cial circuit  in  which  the  action  or  proceeding  is  triable  and 
against  whom  there  is  no  legal  objection  (sec.  3,  chap.  100, 
Laws  1891  S.  D. ) 

[Sec.  5467  Rev.  Codes  N.  D.  is  the  same,  except  that  in  place  of  the 
words  "within  the  judicial  circuit,"  the  words  "in  the  county  or  subdivis- 
ion" are  used.] 

Sec.  273  C.  C.  P.;  Levisee  p.  81;  Wait's  Code  §  273,  ;  Harst  Pr., 
Deer.  Code,  §  640. 

Consult  decisions  under  sec.  5071  Comp.  Laws;  sec.  6455  Rev.  Codes 
N.  D. 

[Author's  Note.  There  being  in  the  act  of  1891  S.  D.,  no  general 
repealing  clause,  and  no  reference  in  the  special  clause  to  any  other  statute 
than  the  act  of  1889,  and  the  Act  of  1891,  while  in  all  other  respects  seem- 
ingly embracing  the  scope  of  the  Compiled  Laws  as  to  referees  and  the  prac- 
tice before  them,  yet  containing  no  provision  for  objections  to  their  appoint- 
ment, the  author  is  inclined  to  the  view  that  sec.  5074,  and  sec.  5075,  Com- 
piled Laws,  providing  for  such  objections  and  the  practice  thereon,  are  still 
in  force,  and  they  will  be  so  treated.] 

OBJECTIONS  TO  REFEREE.  §  5074  Comp.  Laws;  sec.  5458 
Rev.  Codes  N.  D.     Either  party  may  object  to  the  appointment 


OF  REFERENCES  AND  TRIALS  BY  REFEREES.        57 

of  any  person  as  referee  for  the  same  cause  for  which  chal- 
lenges for  cause  may  be  taken  to  a  petit  juror  in  the  trial  of  a 
civil  action, 

Seo.  274  C.  C.  P.;  Levisee,  p.  81;  Harst.  Pr.,  Deer.  Code,  §  641. 

Consult  sec.  5039,  5040  Comp.  Laws;  sec.  5427,  5428  Rev.  Codes  N.  D.  as 
to  challenges  to  petit  jurors. 

Consent  Presumed  When.  An  order  of  reference  made  under  the 
statute  as  it  existed  prior  to  1889,  made  upon  due  notice,  the  adverse  party 
not  appearing  at  the  hearing  or  interposing  any  objections  to  the  order,  and 
no  motion  having  been  made  to  vacate  or  set  it  aside,  several  months  elaps- 
ing between  date  of  the  order  and  hearing  before  referee,  is  presumed  to 
have  been  made  with  consent  of  opposing  party,  and  to  be  valid  and  binding. 

Jerauld  Co.  v.  Williams  et  al, S.  D ,  63  N.  W.  905,     And  where  it 

is  not  stated  in  the  abstract  that  there  was  no  "agreement  of  the  parties 
filed  with  the  clerk  or  entered  in  the  minutes,"  this  court  will  presume  such 
agreement  was  made  and  filed  or  entered,  (following  Kent  v.  Ins.  Co.,  2  S. 
D.  306,  50  N.  W.  85.)    Jerauld  Co.  v,  Williams  et  al,  supra. 

OBJECTIONS— HOW  HEARD.  §  5075  Comp.  Laws;  sec.  5459 
Rev.  Codes  N,  D,  The  objections  taken  to  the  appointment  of 
any  person  as  referee  must  be  heard  and  disposed  of  by  the 
court  or  judge  thereof.  Affidavits  may  be  read  and  witnesses 
examined  as  to  such  objections. 

Sec.  275  C.  C.  P.;  Levisee  p.  81;  Harst.  Pr.  Deer.  Code  I  642. 

Conduit  preceding  section. 

OATHS  OF  REFEREES.      §   4,    Chap.    100,  Laws   1891  S.   D. 
The  referees  before  proceeding  to  hear  the  testimony  must  be 
sworn  to  well  and  truly  try  the  issues,  or  to  determine  the  ques- " 
tions  referred  and  to  make  a  just  and  true  report  according  to 
their  best  knowledge  and  understanding. 

SAME.  §  5461  Rev.  Codes  N.  D.  The  referees  before  pro- 
ceeding to  hear  any  testimony  must  be  sworn  well  and  truly  to 
hear  and  determine  the  facts  referred  to  them  and  true  findings 
render  according  to  the  evidence,  and  they  have  power  to  ad- 
minister oaths  to  all  witnesses  produced  before  them.  (This  is 
sec.  278  C.  C.  P;  sec.  5078  Comp.  Laws,  as  it  stood  before  the 
act  of  1891,  S.  D.) 

Sec.  278  C.  C.  P;  Levisee  p.  81;  Wait's  Code  I  421. 

Consult  also  sec.  5071,  5076  Comp.  Laws,  sec.  5,  chap,  100,  Laws  1891, 
S.  D.  (supra),  sec.  5455,  5460  Rev,  Codes  N,  D.,  and  decisions  thereunder. 


58  CODE  OF  CIVIL  PROCEDURE. 

TRIAL— NOTICE— POWERS  OF  REFEREE.  §  5,  Chap.  100, 
Laws  1891,  S.  D.  The  trial  by  referee  of  an  issue  of  fact,  or  of 
an  issue  of  law  must  be  brought  upon  at  least  eight  days  writ- 
ten notice,  and  conducted  in  like  manner,  and  the  papers  to  be 
furnished  thereupon  are  the  same,  and  are  furnished  in  like 
manner,  as  where  the  trial  is  by  the  court  without  a  jury.  The 
referee  exercises  upon  such  a  trial  the  same  power  as  the  court 
to  administer  oaths,  to  grant  adjournments,  to  preserve  order 
and  punish  the  violation  thereof.  Upon  the  trial  of  an  issue  of 
fact  the  referee  exercises  also  the  same  power  as  the  court  to  allow 
amendments  to  the  summons  or  to  the  pleadings;  to  compel  the 
attendance  of  a  witness  by  attachment;  and  to  punish  a  witness 
for  a  contempt  of  court,  for  non-attendance,  or  refusal  to  be 
sworn,  or  to  testify.  Upon  the  trial  of  an  issue  of  law  the  ref- 
eree exercises  the  same  power  as  the  court  to  permit  a  party  in 
fault  to  plead  anew  or  amend;  to  direct  the  action  to  be  divided 
into  two  or  more  actions;  to  award  costs,  and  otherwise  to  dis- 
pose of  any  question  arising  upon  the  decision  of  the  issue  re- 
ferred to  him.  The  powers  conferred  by  this  section  are  exer- 
cised in  like  manner,  and  upon  like  terms,  as  similar  powers 
are  exercised  by  the  court  upon  a  trial. 

SAME— REPORT— POWERS  OF  COURT— APPEAL  §  5460,  Rev. 
Codes,  N.  D.  The  trial  by  referee  shall  be  conducted  in  the 
same  manner  as  a  trial  by  the  court.  Upon  such  trial  the  ref- 
eree shall  have  the  same  power  to  grant  adjournments  and  al- 
low amendments  to  any  pleading  as  the  court  would  have  and 
upon  the  same  terms  and  with  like  effect.  He  shall  also  have 
the  same  power  to  preserve  order  and  punish  all  violations 
thereof  upon  such  trial  and  compel  the  attendance  of  witnesses 
before  him  and  to  punish  them  as  for  a  contempt  for  non-atten- 
dance or  refusal  to  be  sworn  or  testify  as  is  possessed  by  the 
court.  He  shall  give  to  the  parties  or  their  attorneys  at  least 
eight  days'  notice  of  the  time  and  place  of  trial.  He  must  state 
the  facts  found  and  conclusions  of  law  separately  and  report 
his  findings  together  with  all  of  the  evidence  taken  by  him  and 
all  exceptions  taken  on  the  hearing  to  the  district  court  and  the 
district  court  may  review  such  report  and  on  motion  enter  judg- 


OF  REFERENCES  AND  TRIALS  BY  REFEREES.       59 

merit  thereon,  or  set  aside,  alter  or  modify  the  same  and  enter 
judgment  upon  the  same  so  altered  or  modified,  and  may  re- 
quire the  referee  to  amend  his  report  when  necessary.  The 
judgment  so  entered  by  the  district  court  may  be  appealed  from 
to  the  supreme  court  in  like  manner  as  from  judgments  in  other 
cases.  (As  am'd,  sec.  3,  chap.  112,  Laws  1889,  N.  D.,  as  am'd 
Rev.  Com'rs.) 

FINDINGS— EXCEPTIONS— CASE -REI/IEW.  §  5466  Rev.  Codes 
N.  D.  In  any  trial  by  a  referee  either  party  may  take  except- 
tions  in  the  same  manner  as  on  trials  by  the  court  and  the  ref- 
eree shall  note  in  his  minutes  any  exceptions  so  taken  as  they 
are  taken.  The  prevailing  party  shall  serve  upon  the  other  a 
copy  of  the  referee's  findings  of  fact  and  conclusions  of  law 
after  the  same  shall  have  been  filed  with  a  notice  of  the  time 
and  place  of  such  filing,  and  either  party  may  except  to  any 
finding  of  fact  or  conclusion  of  law  by  a  referee  by  filing  writ- 
ten exceptions  with  the  clerk  at  any  time  before  the  expiration 
of  twenty  days  after  service  of  such  copy  and  notice.  All  such 
exceptions  may  be  incorporated  with  the  statement  of  the  case 
which  may  be  thereafter  settled.  When  the  referee's  findings 
of  fact  or  conclusions  of  law  are  set  aside  or  modified  hy  the 
court,  no  exceptions  shall  be  necessary  to  enable  a  full  review 
of  such  orders  upon  appeal.     (Adopted  through  Rev.  Com'rs. ) 

SEVERAL  REFEREES— POWERS  OF  §  6,  Chap.  100,  Laws 
1891,  S.  D.  Where  the  reference  is  to  more  than  one  referee 
all  must  meet  together  and  hear  all  the  allegations  and  proofs 
of  the  parties;  but  a  majority  may  appoint  a  time  and  place  for 
the  trial,  decide  any  question  which  arises  upon  the  trial,  sign 
a  report  or  settle  a  case.  Either  of  them  may  administer  an 
oath  to  a  witness,  and  a  majority  of  those  present  at  a  time  and 
place  appointed  for  the  trial  may  adjourn  the  trial  to  a  future 
day. 

REPORT— FINDINGS— CONCLUSIONS.  §  8,  Chap.  100,  Laws 
1891,  S.  D.  The  report  upon  the  trial  of  the  whole  issue  must 
contain  a  statement  of  all  the  exceptions  taken  during  the  trial, 
the  rulings  of  the  referee  thereon  and  a  sufficient  statement  of 


60  COt)fe  OF^  CIVIL  PROCEDURE. 

the  facts  or  so  much  of  the  evidence  as  is  material  to  fairly 
present  the  question  raised  by  the  exceptions.  It  must  also 
state,  separately,  the  findings  of  fact  and  conclusions  of  law 
upon  the  issues  raised,  which  may  be  excepted  to  and  reviewed 
in  like  manner  as  if  made  by  the  court,  and  such  findings  and 
conclusions  shall  have  the  same  effect  as  though  made  by  the 
court  upon  the  trial  of  questions  of  fact. 

Consult  sec.  5,  chap.  100,  Laws  1891  S.  D.,  supra;  sec.  5066,  5067  Comp. 
Laws,  sec.  5450,  5451  Rev.  Codes;  sec.  5076  Comp.  Laws,  sec.  5460  Rev.  Codes 
N.  D. 

As  to  new  trials,  see  sec.  5087  Comp.  Laws,  sec.  5471  Rev.  Codes,  N.  D., 
et.  seq. 

Omitted  Findings — When  Error.  Where  the  pleadings  present  sev- 
eral issues  of  fact,  and  the  referee  returns  findings,  omitting  to  make  any 
upon  or  more  of  such  issues,  and  the  parties  suffer  the  referee's  report  to  be 
made  the  basis  of  judgment  by  the  court,  without  any  suggestion  or  ob- 
jection that  all  issues  are  not  reported  upon,  and  a  judgment  consistent  with 
and  supported  by  the  findings  returned,  is  entered,  it  will  not  be  reversed 
on  account  of  such  neglected  issues  unless  appellant  shows  that  evidence  was 
offered  upon  one  or  more  of  such  issues,  and  that  such  evidence  would  have 
supported  a  finding  which  would  countervail  the  findings  actually  made,  and  < 
thus  have  required  a  different  judgment.  Merchants'  Nat.  Bank  v.  McKin- 
ney  et  al,  4  S.  D.  226,  55  N.  W.  929;  Edinburg-American  Land  &  Mort.  Co. 
v.  City  of  Mitchell,  1  S.  D.  593,  48  N.  W.  134;  Himmelman  v.  Henry,  84Cal. 
104,  23  Pac.  1098;  Winslow  v.  Gohransen,  88  Cal.  450,  26  Pac.  504:  Dolliver 
V.  Dolliver,  94  Cal.  642,  30  Pac.  4;  Fincher.v.  Malcolmson  (Cal.),  30  Pac.  835. 
Immaterial  Issue.  A  judgment  of  a  trial  court,  when  fully  sustained  by 
the  findings  of  fact  and  conclusions  of  law,  will  not  be  disturbed  because  a 
referee  fails  to  find  on  all  the  issues,  when  it  appears  that  such  issues  were 
not  material,  and  no  findings  of  fact  were  presented  by  the  party  complain- 
ing and  no  request  made  for  additional  or  more  specific  findings,  or  different 
conclusions  of  law.  Adams  &  Westlake  Co.  v.  Deyette  et  al,  5  S.  D.  418,  59 
N.  W.  214,  and  ca.ses  there  cited.  Added  Conclusions— Findings  Manda- 
tory. By  sec.  3  chap.  112,  Laws  1889,  it  is  provided  ''that  the  court  may  re- 
view such  report  [of  the  referee,]  and  on  motion  enter  judgment  thereon,  or 
set  aside,  or  alter,  or  modify  the  same,  and  enter  judgment  upon  the  same 
so  altered  or  modified,  and  may  require  the  referees  to  amend  their  reports 
when  necessary."  Held,  that  under  this  provision  the  court  might  add  con- 
clusions of  law,  when  they  were  omitted  or  imper''ectly  stated  in  the  report, 
and  enter  judgment  upon  the  modified  findings,  without  re-referring  the  re- 
port to  the  referee  for  amendment.  Held,  further,  that  the  provision  in  said 
section  for  reporting  findings  with  all  evidence  and  exceptions,  is  manda- 


OF  REFERENCES  AND  TRIALS  BY  REFEREES.        61 

tory.  Held,  further,  that  it  appearing  that  all  evidence  was  before  the  court 
when  the  report  was  confirmed  and  judgment  entered,  there  was  substantial 
compliance  with  the  statute.  Kent  v.  Dakota  Fire  &  Marine  Ins.  Co.,  2  S. 
D.  300,  50  N.  W.  85;  Supervisors  v.  Ehlers,  45  Wis.  281.  Confirmation— 
Judgment  Without.  Upon  an  application  for  judgment  upon  a  referee's  re- 
port and  findings,  defendant  opposed  the  application,  but  did  not  raise  the 
point  that  an  order  confirming  the  report  had  not  been  made.  The  trial 
court  upon  such  application  did  not  direct  entry  of  judgment,  but  resubmit- 
ted the  case,  and  after  taking  additional  evidence  the  referee  made  his  final 
report,  upon  which  plaintiff  applied  for  judgment,  defendant's  counsel  not 
appearing  but  duly  waived  notice  of  such  final  application,  and  at  no  time  in 
the  court  below  raised  the  point  that  the  application  for  judgment  was  not 
preceded  by  an  order  confirming  the  report.  Held,  that  defendant  waived 
the  irregularity,  if  such  it  was,  and  cannot  raise  the  point  for  the  first  time 
in  this  court.  Little  v.  Little  (two  cases),  2  N.  D.  175,  49  N.  W.  736. 
Whether,  under  existing  statutes,  in  cases  like  this,  it  is  proper  practice  to 
procure  an  order  confirming  referee's  report  before  applying  for  judgment, 
not  decided.  Little  v.  Little,  supra.  Presumption — Record.  When  the 
evidence  upon  which  a  referee  bases  his  findings  of  fact  is  not  preserved  in  a 
bill  of  exceptions,  and  the  insufficiency  of  the  evidence  to  sustain  such  find- 
ings is  not  assigned  as  error,  it  will  be  presumed  on  appeal  that  the  findings 
accord  with  and  are  sustained  by  the  evidence.      Adams  &  Westlake  Co.  v. 

Deyette  et  al,  5  S.  D.  418,  59  N.  W.  214;  Mf'g  Co.  v.  Galloway,  . . .  .S.  D 

58  N.  W.  565;  Pierce  v.  Manning,  1  S.  D.  306,  51  N.  W.  332;  Hawkins  v.  Hub- 
bard, 2  S.  D.  631,  51  N.  W.  774;  Burnap  v.  Bank,  96  N.  Y.  125;  Thomson  v. 
Bank,  82  N.  Y.  1;  Conklin  v.  Himes,  16  Minn.  457  (Gil.  411);  Foster  v.  Voigt- 
lander  (Kan.),  13  Pac.  777. 

TIME  FOR  REPORT.  §  7,  Chap.  100,  Laws  1891,  S.  D.  The 
referees  must  make  and  file  with  the  clerk  of  the  court  their  re- 
port within  twenty  days  after  the  case  is  finally  submitted. 
But  the  time  may  be  extended  by  the  consent  of  the  parties  or 
by  order  of  the  court  or  judge.  (This  provision  is  evidently 
intended  as  a  substitute  for  sec.  5076  Comp.  Laws,  sec.  276  C. 
C.  P.) 

Sec.  276  C.  C.  P.;   Levisee  p.  81;  Harst  Pr.  Deer.  Code  §  643. 

Consult  sec.  5071  Comp.  Laws,  sec.  5455,  5460,  Rev.  Codes  N.  D.,  sec.  5, 
chap.  100,  Laws  1891  S.  D.,  (supra). 

JUDGMENT— NOT/OE  OF  REPORT  §  9,  Chap.  100,  Laws  1891, 
S.  D.  If  the  report  is  accepted  by  the  court,  judgment  may  be 
entered  thereon  after  the  expiration  of  eight  days  after  written 
notice  of  the  filing  of  the  report  served  by  either  party  on  the 
adverse  party. 


62  CODE  OF  CIVIL  PROCEDURE. 

Consult  sec.  5071  Com  p.  Laws,  sec.  5455,  5460,  Rev,  Codes  N.  D.;  sec.  5, 
8,  chap.  100,  Laws  1891  S.  D.,  supra. 

Without  Confirmation,  When.  Judgment  may  be  entered  upon  the  re- 
port of  a  referee,  though  no  order  confirming  the  report  had  been  previously 
made  where  it  is  not  objected  that  such  order  has  not  been  made,  and  notice  of 
final  application  for  judgment  has  been  waived  by  the  opposing  party.  Lit- 
tle V.  Little,  2  N.  D.  175,  49  N.  W.  736.  Whether,  under  existing  statutes, 
in  cases  like  this,  it  is  pro{>er  practice  to  procure  an  order  confirming  ref- 
eree's report  before  applying  for  judgment,  not  decided.  Id.  Evidence — 
Money  Judgment.  In  an  action  for  an  accounting,  the  case  being  referred 
to  a  referee,  involving  a  transaction  in  which  it  was  claimed  that  a  sale  had 
been  made,  the  opposing  party  claiming  the  property  in  question  was  deliv- 
ered in  trust,  the  evidence  was  examined,  and  held  to  support  the  findings, 
and  to  be  inconsistent  with  the  cause  of  action  stated  in  the  complaint,  and 
that  a  money  judgment  could  not  be  supported  thereunder.      Anderson  v. 

Chilson  et  al, S.  D ,  65  N.  W.  435;  Dal  ton  v.  Vanderveer  (Sup.),  29 

N.  Y.  Supp.  342;  Parrish  v.  R.  R.  Co.  (Pla.),  9  South.  696;  Lewark  v.  Carter, 
(Ind.  Sup.),  20  N.  E.  119;  Bra<iley  v.  Aldrich,  40  N.  Y.  504;  Homer  v.  Ho- 
mer, 107  Mass.  82;  Park  v.  Lide,  90  Ala.  246,  7  South.  805;  18  Am,  &  Eng. 
Ency.  Law,  p.  515.  Incompetent  Evidence— Waiver,  Defendant  having 
objected  to  referee  making  any  rulings  whatever,  and  having  taken  no  ex- 
ception to  the  referee's  action  in  receiving  evidence  over  his  objection,  he 
cannot  raise  the  question  whether  such  evidence  should  have  been  received, 
the  objection  not  having  been  renewed  before  the  court  on  application  for 
judgment,  and  no  exceptions  having  been  taken  on  such  application.  Ills- 
tad  V.  Anderson,  2  N.  D.  167,  49  N.  W.  659;  Bowman  v.  Eppinger,  1  N.  D,  21, 
44  N.  W.  1000.  Irregular  Entry— Waiver.  See  Little  v.  Little,  2  N.  D, 
175,  49  N,  W.  736,  holding  that  the  irregularity,  if  any,  in  entering  judg- 
ment upon  referee's  report  without  first  confirming  the  report,  was  waived 
by  defendant.  Different  Judgment,  In  Bem  et  al  v.  Bern  et  al,  4  S.  D.  138, 
55  N.  W.  1102,  the  findings  of  fact  of  the  referee  were  held  to  be  supported 
by  the  evidence,  but  the  court  below  was  directed  to  enter  a  different  judg- 
ment thereon. 

NEW  TRIAL— APPEAL— RE-REFERENCE.  §  10,  Chap.  100  Laws 
1891,  S.  D,  A  new  trial  may  be  had  or  an  appeal  taken  to  the 
supreme  court  in  like  manner  as  in  other  cases,  and  the  report 
of  the  referee  may  be  incorporated  in  the  bill  of  exceptions.  In 
case  a  new  trial  is  granted,  or  if  the  report  is  not  accepted,  the 
parties  may  again  refer  the  cause,  or  the  same  shall  stand  open 
for  trial  as  though  it  had  not  been  referred.  And  the  party 
finally  recovering  shall  be  entitled  to  the  costs  of  the  former 
reference. 


EXCEPTIONS.  63 

See  sec.  £460,  Rev.  Codes,  N.  D.;  sec.  5088,  5089,  5090,  5091,  Comp. 
Laws;  sec.  5472  to  5475,  Rev.  Codes,  N.  D. 

STENOGRAPHER— WHO  PAYS.  §  11,  Chap.  100,  Laws  1891, 
S.  D.  The  referees  may  appoint  a  stenographer  whose  qualifi- 
cations and  duties  shall  be  the  same  as  those  required  by  law 
in  case  of  the  short-hand  reporter  of  the  court.  The  fees  and 
necessary  expense  of  the  referees  and  the  compensation  of  the 
stenographer  shall  be  fixed  by  the  court,  after  the  filing  of  the 
report,  and  shall  be  audited  and  paid  by  the  county  or  subdi- 
vision wherein  the  court  is  held  which  made  the  reference. 
Provided,  That  the  fees  and  charges  of  the  stenographer  for 
making  a  transcript  of  the  evidence  in  such  cases  shall  not  be  a 
charge  against  or  paid  by  the  county,  but  when  ordered  by  the 
referees  shall  be  paid  by  the  parties  to  the  action.  (As  am'd. 
sec.  1,  chap.  88,  Laws  1893,  S.  D. ) 

See,  as  to  stenographers,  sec.  482,  Comp.  Laws,  as  am'd,  chap,  67,  Laws 
1893,  S.  D. 


CHAPTER  VII. 


Art.  8,  Chap.  12,  Code  of  Civil  Procedure, 
exceptions. 

EXCEPTION  DEFINED.  §  5079  Comp.  Laws;  sec.  5462  Rev. 
Codes  N.  D.  An  exception  is  an  objection  upon  a  matter  of  law 
to  a  decision  made,  either  before  or  after  judgment  by  a  court, 
or  judge,  in  an  action  or  proceeding.  The  exception  must  be 
taken  at  the  time  the  decision  is  made,  except  as  provided  in 
section  5080,  (sec.  1,  chap.  21,  Laws  1887.) 

Harst.  Pr.  Deer.  Code  §  646. 

Consult  sees.  5080,  5081,  Comp.  Laws;  sec.  5463,  5464,  Rev.  Codes  N. 
D.;  5237,  Comp.  Laws. 

When  Taken— Statute.  Sec.  5079  Comp.  Laws,  defining  exceptions, 
and  providing  that  they  "must  be  taken  at  the  time  the  decision  is  made," 
does  not  repeal  or  qualify  section  5049  Compiled  Laws  providing  that  ex- 
ceptions to  instructions  may  be  taken  at  any  time  before  entry  of  final  judg- 
ment.    Uhe  V.  Chicago,  M.  &  S.  P.  Ry.  Co.  3  S.    D.,   663,   57   N.   W.   Rep. 


64  CODE  OF  CIVIL  PROCEDURE. 

484;  England  v.  Vandermark,  (111.  Sup.),  35  N.  'E.  465.  In  the  South  Da- 
kota ease,  supra,  the  following'  cases  are  distinguished  and  explained,  viz: 
Cheatham  v.  Wilber,  1  Dak.  335,  46  N.  W.  580;  Boss  v.  R.  R.  Co.  2  N.  Dak. 
128,  49  N.  W.  Rep.  658;  St.  Croix  Lum.  Co.  v.  Penniugton,  2  Dak.  467,  11 
N.  W.  4t»7.  Too  General.  An  exception  ''to  all  the  charges  and  to  the 
special  request  asked  by  defendant  for  the  reason  that  they  are  liable  to 
mislead  the  jury,  and  for  the  reason  that  the  jury  in  its  verdict  would  pass 
upon  these  questions,"  is  too  general  and  does  not  entitle  plaintiff  to  have 
any  question  regarding  the  instructions  considered  on  a  motion  for  a  new 
trial.  Alt  v.  Chi.  &  N.  W.  Ry.  Co.  5  S.  D.  20,  57  N.  W.  Rep.  1126;  Hayne 
New  Tr.  &  App.  sec.  128;  2  Thomp.  Trials,  2b98;  Elliott,  App.  Proc.  791; 
Smith  V.  Coleman,  (Wis.),  46  N.  W.  664;  Carroll  v.  Williston,  (Minn.),  Id. 
352.  When  Taken — Presumption.  The  words  "exception  taken,"  appear- 
ing in  the  bill  of  exceptions  following  a  rule  by  the  judge,  will  be  presumed 
to  have  been  taken  at  the  time  the  ruling  was  made,  and  by  the  party 
against  whom  it  was  made.  An  objection  to  the  form  of  an  exception,  made 
for  the  first  time  in  this  court,  comes  too  late.  Hall  v.  Harris,  (on  rehear- 
ing), 2  So.  Dak.  331,  50  N.  W.  Rep.  98;  Simpson  v.  Dall,  3  Wall.  469.  Be- 
fore Verdict.  Exceptions  to  instructions  must  be  taken  when  they  are 
given,  or  at  least  before  verdict,  unless  further  time  has  been  allowed. 
Cheatham  v.  Wilber  et  al,  1  Dak.  335,  46  N.  W.  580.  But  see,  Uhe  v. 
Chi.  M.  &  St.  P,  Ry.  Co.,  supra.  See  also,  Everett  v.  Buchanan,  2  Dak. 
249,  6  N.  W.  Rep.  439.  In  the  matter  of  opening  Gold  street,  Deadwood,  D. 
T.,  respondent  v.  Newton,  2  Dak.  149.  3  N.  W.  Rep.  329.  Record.  For  a 
case  in  which  (more  fully  explained  under  section  5080)  it  was  held  that  no 
exceptions  appeared,  and  no  record  which  was  the  basis  for  specification  of 
errors  on  appeal,  see  Wood  v.  Nissen,  2  N.  D.  26,  49  N.  W.  Rep.  103.  See 
also  DeLendrecie  v.  Peck,  1  N.  D.  422,  48  N.  W.  Rep.  342. 

WHAT  DEEMED  EXCEPTED  TO.  §  5080  Comp.  Laws;  § 
5463,  Rev.  Codes  N.  D.  The  verdict  of  the  jury,  the 
final  decision  in  an  action  or  proceeding,  an  interlocu- 
tory order  or  decision  finally  determining  the  rights  of  the  par- 
ties, or  some  of  them,  an  order  granting  or  refusing  a  new  trial, 
an  order  sustaining  or  overruling  a  demurrer,  allowing  or  re- 
fusing to  allow  an  amendment  to  a  pleading,  striking  out  a 
pleading  or  a  portion  thereof,  refusing  a  continuance,  an  order 
made  upon  ex  parte  application,  and  an  order  or  decision  made 
in  the  absence  of  a  party,  are  deemed  to  have  been  excepted  to, 
(sec.  2,  chap.  21,  Laws  1887.) 

[Sec.  5463  Rev.  Codes  N.  D.,  is  the  same  as  the  above,  except  that  the  fol- 
lowing language  is  added  at  the  end  thereof:     "and  the  same  may  be  re- 


EXCEPTIONS.  65 

viewed  both  as  to  questions  of  law  and  the  sufficiency  of  the  evidence  upon 
motion  for  a  new  trial  as  fully  as  if  exception  thereto  had  been  expressly 
taken."    (Am'd.  Rev.  Com'rs.) 

Harst.  Pr.  Deer.  Code,  sec.  647. 

1.  Deemed  Excepted  To.     In  Benedict  v.  Johnson,   N.  D. 

,  57  N.  W.  Rep.  66,  it  was  held,  that  while  the   record   in  that 

case  does  not  show  an  exception  taken  to  the  ruling  of  the  court  denying  the 
motion  to  dismiss,  it  does  not  affirmatively  appear  that  defendant's  counsel 
was  not  present  when  the  order  was  made;  and  that  under  section  5080  de- 
fendant is  deemed  to  have  excepted  to  the  decision.  Section  Construed. 
This  section  was  enacted  for  the  benefit  of  parties  who  on  account  of  inad- 
vertance,  or  absence  when  the  decision  or  order  was  made  or  rendered, 
failed  to  take  exceptions,  and  parties  not  coming  within  these  provisions 
must  save  their  exceptions  as  before  this  section  was  enacted.  Bostwick  et 
al  V.  Knight  et  al,  5  Dak.  305, 40  N.  W.  344;  Lamet  v.  Miller,  11  Pac. 
745;  Purdum  v.  Taylor,  9  Pac.  607;  Guthrie  v.  Phelan,  6  Pac.  107. 

2.  Must  Except — Review.  The  action  of  the  trial  court  in  directing 
a  verdict,  and  in  refusing  to  allow  plaintiff  to  dismiss  her  action,  cannot  be 
reviewed  on  appeal  without  an  exception.  Sees.  5080,  5237  Comp.  Laws, 
held,  not  to  permit  such  a  review  without  an  exception.  DeLandrecie  v. 
V.  Peck,  1  No.  Dak.  422,  48  N.  W.  342;  Hayne  New  Tr.  &,  App.  sec.  119; 
Kirch  V.  Davis,  55  Wis.  287,  11  N.  W.  Rep.  689.  The  action  of  the  trial 
court  in  directing  a  verdict,  and  refusing  to  allow  plaintiff  to  dismiss  her 
action,  cannot  be  reviewed  on  appeal  without  an  exception.  DeLendrecie 
V.  Peck,  1  N.  D.  422,  48  N.  W.  Rep.  342.  In  this  case  the  coui-t  say:  "The 
ruling  of  the  court  in  directing  a  verdict  cannot  be  construed  as  either  an 
order  or  a  decision,  within  the  meaning  of  that  section  (sec.  5080.)  Such 
ruling,  if  erroneous,  constitutes  an  error  of  law  occurring  on  the  trial." 
See  also  Hayne  New  Tr.  and  App.  sec.  119,  and  cases  there  cited.  The 
court  in  the  Peck  case  further  say:  "Only  the  verdict  of  a  jury,  certain 
orders,  and  certain  decisions  are  deemed  excepted  to."  And  in  referring  to 
the  contention  that  an  exception  should  be  deemed  to  have  been  taken  in 
that  case,  the  court  remark:  "The  result  of  this  doctrine  would  be  that  we 
would  have  a  bill  of  exceptions  without  the  necessity  of  any  exceptions  in  it, 
and  the  phrase,  'errors  of  law  occurring  at  the  trial,'  would  cease  to  have 
any  distinctive  significance."  See  also  Kirch  v.  Davies,  55  Wis.  287,  11  N. 
W.  689.  When  Unnecessary.  If  the  ruling  was  an  order  sustaining 
a  demurrer,  no  exception  is  necessarj'.     Ross  v.    Waite  et  al,  2  S.  D.  638,  51 

N.    W.  866.     In   Smith   et  al   v.   Commercial  Nat.  Bank  et  al; S. 

D ,  64  N.  W.  Rep.  529,  it  was  held,  that  upon  appeal  from  a  judg- 
ment, upon  the  judgment  roll  alone,  the  judgment  and  the  findings  of  fact 
are  reviewable,  without  a  bill  of  exceptions.  See  also  Mortgage  Co.  v. 
Bradley,  4  S.  D.  158,  55  N.  W.  1108. 

5— T  P 


66  CODE  OF  CIVIL  PROCEDURE. 

HOW  STATED.  §  5081  Comp.  Laws.  No  particular  form  of 
exception  is  required,  but  when  the  except^ion  is  to  the  verdict 
or  decision,  upon  the  ground  of  the  insufficiency  of  the  evi- 
dence to  justify  it,  the  objection  must  specify  the  particulars  in 
which  such  evidence  is  alleged  to  be  insufficient;  but  the  speci- 
fication of  such  particulars  as  provided  in  section  5090  shall  be 
sufficient.  The  objection  must  be  stated,  with  so  much  of  the 
evidence  or  other  matter  as  is  necessary  to  explain  it,  and  no 
more.  Only  the  substance  of  the  reporter's  notes  of  the  evi- 
dence shall  be  stated.  Documents  on  file  in  the  action  or  pro- 
ceeding may  be  copied,  or  the  substance  thereof  stated,  or  a 
reference  thereto  sufficient  to  identify  them  may  be  made. 

STATEMENT  OF  CASE  DEFINED.  §  5464  Rev.  Codes  N.  D. 
A  statement  of  the  evidence  or  a  part  thereof  settled  by  the 
court  for  the  purpose  of  reviewing  either. errors  of  law  or  the 
sufficiency  of  the  evidence  or  both  is  designated  in  this  code  a 
statement  of  the  case.     (Adopted  through  Rev.  Com'rs. ) 

Sec.  279  C.  C.  P.;  Levisee  p.  81;  Wait's  Code  §  264;  Harst.  Pr.  Deer. 
Codeg  648. 

Consult  cases  cited  under  sections  5079,  5080,  5083,  5088,  subdivision  6 
and  7,  5090,  sec.  5462,  5463,  5467,  5472,  5474,  Rev.  Codes  N.  D. 

1.  Exceptions — State  of  Record.  Under  this  section,  relating  to  the 
insufficiency  of  the  evidence  to  sustain  the  verdict  or  decision,  the  evidence 
cannot  be  examined  on  a  mere  objection  that  the  evidence  is  insufficient  to 
justify  the  decision.  Henry  v.  Dean,  6  Dak.,  78,  50  N.  W.  487.  Judg- 
ment Boll.  An  appeal  from  the  judgment  brings  before  the  Supreme  Court 
the  judgment  roll  proper  for  review,  and  a  case  which  has  not  been  settled 
by  the  trial  judge  and  made  part  of  the  judgment  roll  cannot  be  reviewed  on 
appeal.  Fargo  et  al  v.  Palmer  et  al,  4  Dak.  232,  29  N.  W.  463.  Agreement 
of  Counsel.  Evidence  not  properly  preserved  cannot,  nearly  two  years  after 
the  trial,  be  made  part  of  the  record  on  appeal,  by  agreement  of  counsel, 
without  the  concurrence  of  the  trial  judge.  Gress  v.  Evans  et  al,  1  Dak.  371, 
46  N.  W.  1132.  See,  as  to  sufficiency  of  bills  of  exception,  Tolman  v. 
New  Mexico  &  D.  M.  Co.,  4  Dak.  4,  22  N.  W.  505;  St.  Croix  Lum.  Co. 
V.  Pennington,  2  Dak.  467,  11  N.  W.  497;  French  v.  Lancaster,  2  Dak. 
276,  9  N.  W.  716.  Stenog^rapher's  Minutes.  The  minutes  of  the  sten- 
ographer upon  the  trial  are  not  official  records,  and  in  order  to  be  made  part 
of  the  record  must  be  incorporated  in  a  ease  or  bill  of  exceptions.  Golden 
Terra  Min.  Co.  v.  Smith  et  al,  2  Dak.  377,  11  N.  W.  98.  Stenograph- 
er's and  referee's  notes  of  evidence  cannot  take  the  place  of  a  bill  of  excep- 


EXCEPTIONS.  67 


tions  or  statement,  even  though  stipulated  by  the  party.  Merchant's  Nat. 
Bank  v.  McKinney  et  al,  4  S.  D.  226,  60  N.  W.  162.  Assignment  of 
Error.  An  assignment  alleging  error  in  the  ruling  of  the  trial  court  is  un- 
available on  appeal,  where  the  record  does  not  show  that  such  ruling  was 
made,  or  the  facts  upon  which  it  is  assumed  in  argument  to  have  been  made. 

Johnson  v.  Gilmore,  . .  .S.  D ,  60  N.  W.  1070.  Error  Must  Appear.  Where 

no  exceptions  are  contained  in  the  judgment  roll  by  case,  bil),  or  otherwise, 
and  no  error  appears  on  the  record,  the  judgment  will  be  affirmed.  Ray- 
mond V.  Spicer,  6  Dak.  45,  50  N.  W.  399.  Findings.  Error  in  rendering 
judgment  on  findings  that  do  not  dispose  of  all  material  issues,  being  error 
of  record  ascertainable  from  inspection,  may  be  first  urged  in  the  Supreme 
Court,  without  a  bill  of  exceptions.  Dole  v.  Burleigh,  1  Dak.  218,  46  N.  W. 
692.  The  evidence  will  not  be  considered  on  appeal  unless  embodied  in  a  bill 
of  exceptions  or  statement  of  the  case;  which  rule  applies  to  the  review  of 
an  order  designated  for  review  in  this  court.  Id.  Order — Oral  Evidence. 
When  an  order  is  made  in  the  court  below,  wholly  or  in  part  upon  oral  evi- 
dence, all  such  evidence  must  be  brought  to  this  court  on  an  appeal  from  the 
order,  by  bill  or  statement.     Foley- Wadsworth  Implement  Co.  v.  Porteous, 

:. . .  S.  D ,  63  N.  W.  155;  Bank  v.  McKinney,  4  S.  D.  226,  60  N.  W.  162. 

2.  Specifications.  In  order  to  take  advantage  of  the  insufficiency  of 
the  evidence  to  support  the  verdict,  the  objection  must  specify  the  particu- 
lar in  which  the  evidence  is  alleged  to  be  insufficient,  designating  the  statu- 
tory grounds,  or  record,  on  which  the  motion  will  be  made.  Gaines  v.  White, 
2  S.  D.  410,  47  N.  W.  524;  Holcomb  et  al  v.  Keliher,  3  S.  D.  497,  54  N.  W. 
535.  The  objection  must  be  stated,  with  so  much  of  the  evidence  as  is  nec- 
essary to  explain  it,  and  no  more.  Holcomb  v.  Keliher,  supra.  An  appeal, 
alleging  generally  for  error  "that  the  evidence  was  insufficient  to  justify  the 
decision,"  will  not  be  considered.  Caulfield  v.  Bogle,  2  Dak.  464,  11  N.  W. 
511.  The  objection  should  have  beefa  so  specific  in  the  trial  court  that  the 
appellate  court  can  see  that  the  objection  in  question  was  passed  upon  there 
or  it  will  not  be  considered  on  appeal.  Caledonia  Gold  Min.  Co.  v.  Noonan 
et  al,  3  Dak.  189,  14  N.  W.  426;  3  Wait's  Pr.  206,  230;  Tooley  v.  Bacon,  70  N. 
Y.  37;  Levin  v.  Russel,  42  N.  Y.  251;  Williams  v.  Sergeant,  4  N.  Y.  481; 
Belk  V.  Meagher,  104  U.  S.  281;  Braly  v.  Reese,  51  Cal.  447;  Waterville 
M'f'g  Co.  V.  Brown,  19  How.  Pr.  27;  Knapp  v.  Schneider,  24  Wis.  70;  City  of 
Ripon  V.  Bettel,  30  Wis.  614;  Columbia  Del.  Bridge  Co.  v.  Geisee,  38  N.  J. 
Law  39;  Burton  v.  Driggs,  20  Wall.  125;  Merril  v.  Seaman,  6  N.  Y.  168; 
Coon  V.  R.  R.  Co.,  5  N.  Y.  492  (531).  Insufficient  for  Review.  A  bill  of 
exceptions  was  settled  below,  and  is  embraced  in  the  record  here;  but  con- 
tains no  specifications  of  error  occurring  at  the  trial,  nor  any  exception 
pointing  out  wherein  any  finding  of  fact  is  not  justified  by  the  evidence;  no 
errors  are  assigned  in  appellant's  brief;  held,  under  the  statutes  and  rules  of 
court,  and  upon  the  authority  of  Hostetter  v.  Elevator  Co.,  4  N.  D.  357,  61 
N.  W.  49,  that  this  court  will  not  examine  the  record  to  review  errors  below. 


68  CODE  OF  CIVIL  PROCEDURE. 

First  Nat.  Bank  of  Devil's  Lake  v.  Merchant's  Nat.  Bank  of  Devil's  Lake  et 

al, N.  D ,  64  N.  W.  941.     Negligence.     Specifications  in  a  motion 

for  a  new  trial  were,  "that  the  verdict  is  contrary  to  the  law  and  the  facts, 
in  that  the  negligence  of  the  defendant  was  the  proximate  cause  of  the  in- 
jury to  the  plaintiff,  and  that  there  is  no  evidence  in  the  case  that  shows 
that  the  plaintiff  was  guilty  of  any  negligence  whatever."  Held,  to  be  a  good 
specification  of  error  under  the  statute.  Alt  v.  Chi.  &  N.  W.  Ry.  Co.,  5  S. 
D.  20, 57  N.  W.  1126.  Too  GeneraL  But  an  exception  to  the  judge's  charge, 
as  follows:  "Plaintiff  excepts  to  all  of  the  charges,  and  to  the  special  re- 
quests asked  by  defendant,  for  the  reason  that  they  are  liable  to  mislead  the 
jury,  and  for  the  reason  that  the  jury  in  its  verdict  would  pass  upon  these 
questions,"  is  too  general  to  be  available  on  appeal;  Id;  Hayne  New  Tr.  and 
App.  sec.  128;  2  Thomp.  Tr.  2398;  Elliott  App.  Proc.  791;  Smith  v.  Coleman, 
(Wis.),  46  N.  W.  664.  Carroll  v.  Williston  (Minn.),  Id.  3.52.  An  exception 
"to  that  portion  of  the  court's  charge  commencing  with  the  words  (specify* 
ing  the  words),  and  from  there  to  the  end,"  is  not  an  available  exception, 
where  the  portion  of  the  charge  so  defined  contains  two  or  more  distinct  and 
independent  propositions.  Calkins  v.  Seabury-Calkins  Consol.  Min.  Co.,  5 
S.  D.  299,  58  N.  W.  797;  Banbury  v.  Sherin,  4  S.  D.  88,  55  N.  W.  723;  Bouck 
v.  Enos,  61  Wis.  660,  21  N.  W.  825.  An  exception  as  follows:  "We  except 
to  each  of  the  instructions  given  by  the  court  to  the  jurj',  respectively," — is 
not  such  an  exception  as  entitles  appellant  to  a  review  of  the  general  in- 
structions given  by  the  court  to  the  jury.  Banbury  v.  Sherin,  4  S.  D.  88,  55 
N.  W.  723;  Kennedy  v.  Falde,  4  Dak.  319,  29  N.  W.  667;  Galloway  v.  Mc- 
Lean, 2  Dak.  372,  9  N.  W.  98.  Object  Of.  The  object  of  specifications  in 
the  notice  of  intention,  bill  of  exceptions,  or  statement,  is  to  inform  the  op- 
posing party  in  what  respect  the  appealing  party  deems  the  evidence  insuffi- 
cient, that  the  opposing  party  may  see  that  all  the  evidence  he  deems  neces- 
sary or  material  upon  the  point  sugge'feted  may  be  incorporated  into  the  bill 
of  exceptions,  and  that  counsel  may  be  properly  prepared  to  discuss  the 
questions  presented,  and  the  court  properly  advised  of  the  questions  to  be 
considered  and  decided.  When  the  specifications  are  sufficient  to  accom- 
plish these  purposes  they  are  sufficient.  Randall  et  al  v.  Burk  Tp.  of  Min- 
nehaha county  et  al,  4  S.  D.  337,  57  N.  W.  4.  Bill  of,  Defined.  A  bill  of 
exceptions  is  a  written  statement  of  the  exceptions  to  the  decisions  or  in- 
structions of  the  trial  judge  upon  the  trial,  with  so  much  of  the  facts  as  is 
necessary  to  explain  the  writing,  and  must  be  settled,  allowed,  and  signed  by 
the  judge  in  the  manner,  upon  the  notice,  and  within  the  time  pointed  out 
in  the  statute.  Its  object  is  to  bring  up  for  review  matters  occurring  at  the 
trial  not  otherwise  appearing  of  record.  St.  Croix  Lum.  Co.  v.  Penning- 
ton, 2  Dak.  467,  11  N.  W.  497.  The  objection  should  point  out  some  definite 
or  specific  defect.  Id.  A  pretended  bill  of  exceptions  not  appearing  to  have 
been  properly  settled  or  authenticated,  will  be  stricken  from  the  record.  In 
the  matter  of  Gold  Street  v.  Newton,  2  Dak.  149,  3  N.  W.  329.     Futile  Objec- 


EXCEPTIONS.  69 

tion.  Under  sec,  5081,  Q'omp.  Laws,  upon  objection  to  the  sufficiency  of  the  evi- 
dence, the  evidence  cannot  be  examined  on  a  mere  objection  that  the  evidence  is 
insufficient  to  justify  the  decision.  Henry  v.  Dean,  6  Dak.  78,  50  N.  W.  487, 
The  insufficiency  of  the  evidence  cannot  be  assailed  in  this  court  when  in 
neither  the  notice  of  intention  to  move  for  a  new  trial  nor  the  bill  of  excep- 
tions are  the  particulars  specified  wherein  the  evidence  is  alleged  to  be  in- 
sufficient. Pickert  v.  Rugg  et  al,  1  N.  D.  230,  46  N.  W.  446.  Exceptiona 
to  Findings,  Where  the  bill  of  exceptions  contained  no  specifications  of 
errors  of  law,  such  errors,  if  they  exist,  will  not  be  considered  in  this  court; 
which  rule  applies  to  cases  of  trial  to  the  court,  where  no  motion  foV  a  new 
trial  is  made  below.  Where  exceptions  to  findings  of  fact  do  not  specify 
wherein  such  findings  are  not  justified  by  the  evidence,  this  court  will  not 
explore  the  record  to  ascertain  the  fact.      Hostetter  v.  Brooks  Elevator  Co., 

N.  D ,  61  N.  W.  49.     The  court  in  this  decision  construe  Session 

Laws  of  N.  D.  1891,  chap.  121.  Question  of  Law,  Where  insufficiency  of 
the  evidence  to  justify  the  verdict  is  assigned  as  error,  though  no  sufficient 
specification  of  the  particulars,  etc.,  is  made,  and  where  the  trial  court  dis- 
posed of  the  case  as  one  of  law,  the  question  here  is  not  whether  the  verdict 
is  sustainable  as  a  conclusion  of  fact,  but  whether  the  court  was  right  in 
treating  the  case  as  presenting  no  question  of  fact.      Sioux  Banking  Co.  v. 

Kendall  et  al,  . . . .  S.  D ,  62  N.  W.  377;    Mercantile  Co.  v.  Faris,  ....  S. 

D ,60N.  W.  403. 

SETTLED  THEN  OR  AFTERWARDS.  §  5082  Comp.  Laws;  § 
5465,  Rev.  Codes  N,  D.  A  bill  containing  the  exceptions  to 
any  ruling  may  be  presented  to  the  judge  at  the  time  the  ruling 
is  made,  or  the  exception  may  be  entered  on  the  judge's  min- 
utes, and  afterwards  settled.  The  bill  must  be  conformable  to 
the  truth,  or  be  at  the  time  corrected  until  it  be  so,  and  signed 
by  the  judge  and  filed  with  the  clerk. 

[Sec.  5465  Rev.  Codes  N.  D.,  is  the  same,  except  that  it  substitutes  for 
the  term  "A  bill  containing  the  exceptions,"  the  term  "A  statement  con- 
taining exceptions;"  and  for  tKe  term  "The  bill  must  be  conformable,"  the 
term  "Such  statement  must,"  etc.,  is  used.     (Am'd.  Rev.  Com'rs.] 

Sec.  280,  C.  C.  P.;  Levisee  p.  83;  Wait's  Code  §  264;  Harst  Pr,  Deer. 
Code  §  649. 

Consult  decisions  under  section  5079,  5081,  5083,  5084,  5086,  5090,  Comp. 
Laws;  sec,  5462,  5464,  5467,  5468,  5470,  5074,  Rev.  Codes  N.  D. 

1,  The  Bill — The  Time,  The  exceptions  should  be  taken  at  the  time 
of  the  ruling  or  instruction  complained  of,  or  afterwards  upon  the  judge's 
minutes,  St.  Croix  Lum.  Co.  v.  Pennington,  2  Dak,  467,  11  N,  W.  497,  To 
review  an  affidavit  for  a  continuance  it  must  be  made  part  of  the  record  by 
being  incorporated  in  a  bill  of  exceptions,     Everett  v,   Buchanan,   2   Dak. 


70  CODE  OF  CIVIL  PROCEDURE. 

249,  6  N.  W.  439.  A  recital  in  a  record,  under  the  head  of  "minutes  of  the 
court,"  showing  disposition  of  a  motion  for  continuance,  is  not  a  bill  of  ex- 
ceptions. Id.;  Gordan  v.  Clark,  23  Cal.  534;  Stone  v.  Stone,  17  Cal.  513; 
People  V.  Houseshell,  10  Gal.  83;  Gates  v.  Buckingham,  4  Cal.  268;  Ritter 
V.  Mason,  11  Cal.  214;  Moore  v.  Temple,  11  Cal.  360.  Filing— Signing, 
The  filing  of  the  bill  of  exceptions  may  precede  the  signature  of  the  judge. 
Marble  v.  Fay,  49  Cal.  585.  See,  however,  Keller  v.  Lewis,  56  Cal.  466, 
(469),  construing  section  650  of  the  California  Code  (and  which  is  the  same 
as  section  5083  Comp.  Laws  in  this  respect),  construing  the  last  sentence  of 
that  section  to  require  that  the  bill  shall  be  first  certified  by  the  judge,  be- 
fore filing. 

2.  Its  Verity — Judge's  Duty.  After  a  trial  judge  has  decided  and 
announced  what  shall  be  embodied  in  a  bill  of  exceptions,  it  is  not  his  duty 
to  engross  the  bill  in  accordance  with  his  decision,  and  he  cannot  be  said  to 
have  neglected  to  settle  such  bill  unless  he  neglects  to  sign  the  bill  after  it 
is  presented  to  him  for  signature,  engrossed  as  settled  by  him.  Edwards  & 
McCuUouch  Lum.  Co.  v.  Baker,  2  N.  D  289,  54  N.  W.  1026;  Haynes  New  Tr. 
&  App.  sec.  156.  See  dissenting  opinion  of  Chief  Justice  Shannon,  in  Parli- 
man  v.  Young  et  al,  2  Dak.  175,  4  N.  W.  711,  relative  to  settlement  and  sign- 
ing of  bill  of  exceptions,  and  to  the  effect  that  a  case  or  bill  of  exceptions 
settled  by  the  court  cannot  be  gainsaid. 

ON  TRIAL— MODE  OF  SETTLEMENT— AMENDMENTS.  §  5083, 
Comp.  Laws.  When  a  party  desires  to  have  exceptions  taken 
at  a  trial  settled  in  a  bill  of  exceptions,  he  may,  within  thirty 
days  after  the  entry  of  judgment,  if  the  action  were  tried  with 
a  jury,  or  after  receiving  notice  of  the  entry  of  judgment,  if 
the  action  were  tried  without  a  jury,  or  such  further  time  as 
the  court  in  whicl^  the  action  is  pending,  or  a  judge  thereof, 
may  allqw,  prepare  the  draft  of  a  bill  and  serve  the  same,  or  a 
copy  thereof,  upon  the  adverse  party.  Such  draft  must  con- 
tain all  the  exceptions  taken,  upon  which  the  party  relies. 
Within  twenty  days  after  such  service  the  adverse  party  may 
propose  amendments  thereto  and  serve  the  same,  or  a  copy 
thereof,  upon  the  other  party.  The  proposed  bill  and  amend- 
ments must,  within  ten  days  thereafter,  be  presented  by  the 
party  seeking  the  settlement  of  the  bill  to  the  judge  who  tried 
or  heard  the  case,  upon  five  days'  notice  to  the  adverse  party, 
or  be  delivered  to  the  clerk  of  the  court  for  the  judge.  When 
received  by  the  clerk,  he  must  immediately  deliver  them  to  the 
judge,  if  he  be  in  the  county;  if  he  be  absent  from  the  county 


EXCEPTIONS.  71 

and  either  party  desire  the  papers  to  be  forwarded  to  the  judge, 
the  clerk  must,  upon  notice  in  writing  of  such  party,  immed 
iately  forward  them  by  mail  or  other  safe  channel;  if  not  thus 
forwarded,  the  clerk  must  deliver  them  to  the  judge  immediate- 
ly after  his  return  to  the  county.  When  received  from  the 
clerk,  the  judge  must  designate  the  time  at  which  he  will  settle 
the  bill,  and  the  clerk  must  immediately  notify  the  parties  of 
such  designation.  At  the  time  designated  the  judge  must  set- 
tle the  bill,  if  no  amendments  are  served,  or  if  served  are  al- 
lowed, the  proposed  bill  may  be  presented  with  the  amend- 
ments, if  any,  to  the  judge  for  settlement,  without  notice  to 
the  adverse  party.  It  is  the  duty  of  the  judge,  in  settling  the 
bill,  to  strike  out  of  it  all  redundant  and  useless  matter,  so 
that  the  exceptions  may  be  presented  as  briefly  as  possible. 
When  settled  the  bill  must  be  signed  by  the  judge,  with  his 
certificate  to  the  effect  that  the  same  is  allowed,  and  shall  then 
be  filed  with  the  clerk.     (Sec.  4,  cha^.  21,  Laws  1887,  Dak.) 

SAME— SETTLEMENT  OF  STATEMENT.  §  5467  Rev.  Codes  N. 
D.  When  a  party  desires  to  have  a  statement  of  the  case  set- 
tled, he  may  within  thirty  days  after  receiving  notice  of  the 
entry  of  judgment  or  such  further  time  as  the  court  may  allow 
prepare  the  draft  of  a  statement  and  serve  the  same  upon  the 
adverse  party.  Such  draft  must  contain  all  the  exceptions 
upon  which  the  party  relies,  but  no  particular  form  of  excep- 
tion is  required.  The  objection  must  be  stated  with  so  much 
of  the  evidence  or  other  matter  as  is  necessary  to  explain  it  and 
no  more.  Only  the  substance  of  the  reporter's  notes  of  the 
evidence  shall  be  stated.  Documents  on  file  in  the  action  or 
proceeding  may  be  copied  or  the  substance  thereof  stated. 
There  shall  be  incorporated  in  every  such  statement  a  specifi- 
cation of  the  particulars  in  which  the  evidence  is  alleged  to  be 
insufficient  to  justify  the  verdict  or  other  decision  and  of  the 
errors  of  law  upon  which  the  party  settling  the  same  intends 
to  rely.  If  no  specification  is  made  the  statement  shall  be  dis- 
regarded on  motion  for  a  new  trial  and  on  appeal.  Within 
twenty  days  after  the  service  of  the  draft  of  a  statement  the 
adverse  party  may  propose  amendments  to  the  same  and  serve 


CODE  OF  CIVIL  PROCEDURE. 


such  amendments  upon  the  other  party.  The  proposed  state- 
ment and  amendment  must  within  twenty  days  thereafter  be 
presented  by  the  party  seeking  the  settlement  thereof  to  the 
judge  who  tried  or  heard  the  case  upon  five  days'  notice  to  the 
adverse  party.  At  the  time  designated  the  judge  must  settle 
the  statement.  If  no  amendments  are  served,  or  if  served,  are 
allowed,  the  proposed  statement  may  be  presented  with  the 
amendments,  if  any,  to  the  judge  for  settlement  without  notice 
to  the  adverse  party.  If  the  judge  is  absent  from  the  district 
at  the  time  when  the  proposed  statement  should  be  presented 
to  him  for  settlement,  the  time  of  such  absence  shall  not  be 
deemed  any  portion  of  the  time  herein  limited  for  the  settle- 
ment thereof.  It  is  the  duty  of  the  judge  in  settling  the  state- 
ment to  strike  out  of  it  all  redundant  and  useless  matter  and  to 
make  the  statement  truly  represent  the  case,  notwithstanding 
the  assent  of  the  parties  to  such  matter.  When  settled  the 
statement  must  be  signed  by  the  judge  with  his  certificate  to 
the  effect  that  the  same  is  allowed  and  shall  then  be  filed  with 
the  clerk.     fAm'd.  Rev.  Com'rs. ) 

As  to  exceptions  before  a  referee,  in  N.  D.,  see  sec.  5466,  Rev.  Codes. 
N.  D.  in  chap.  VI. 

Har&t.  Pr.  Deer.  Code,  sec.  650;  Wait's  Code,  sec.  268. 

Consult  decisions  under  sections  5081,  5085,  5086,  Comp.  Laws;  sections 
5464,  5469,  5470,  Rev.  Codes  N.  D. 

1.  The  Time— Extensions,  Etc.  In  Miller  v.  Way  et  al.,  3  S.  D.  627, 
54  N.  W.  814,  it  was  held,  that  where  an  order  extending  the  time 
within  which  a  bill  of  exceptions  might  be  settled  was  granted  upon  condi- 
tions, and  such  conditions  had  been  complied  with,  the  party  in  whose  favor 
the  order  is  made  thereby  acquires  a  right  of  which  the  court  cannot  de- 
prive him,  either  by  a  revocation  of  the  order  imposing  the  conditions,  or 
inquiring  into  matters  affecting  the  merits  of  the  order  previous  to  its  being  , 
granted.  The  opposing  party,  having  accepted  the  conditions,  is  bound  to 
abide  by  the  results.  Id.;  Reiver  v.  Boos  (Pa.  Sup.),  1  Atl.  422;  Van 
Fliet  V.  Conrad,  95  Pa.  St.  495;  Webster-Glover  L.  &  M.  Co.  v.  St.  Croix 
Co.,  71  Wis.  317,  36  N.  W.  864;  Carll  v.  Oakley,  97  N.  Y.  633.  Waiver. 
All  objections  relative  to  presentment  to  the  judge  are  waived  where  the 
delay  was  the  result  of  accommodation  between  the  attorneys  and  the  re- 
spective parties.  Claffey  v.  Head  (Cal.),  10  Pac.  C.  L.  J.  777.  Revocation 
of  Certificate.  A  judge  may  revoke  his  certificate  to  a  settled  statement  on 
appeal,  during  the  term  at  which  the  judgment  was  rendered,  but  not  after- 
wards.    Branger  v.  Chevalier,  9  Cal.  172. 


EXCEPTIONS.  73 

Exceptions  Before  and  After  Judgtnent.  It  was  held  in  Tregambo  v. 
Comanche  M.  &  N.  Co.,  57  Cal.  501,  that  under  this  section  bills  of  excep- 
tions taken  before  as  well  as  after  judgment  may  be  settled.  See  also  to  the 
same  effect  Pflster  v.  Wade,  59  Cal.  273.  But  compare  Sacremento  v.  C.  P. 
R.  R.,  61  Cal.  250.  If  the  bill  of  exceptions  is  not  presented  to  and  settled 
by  the  judge  it  will  not  be  noticed  on  appeal.  Warner  v.  Holman,  24  Cal. 
229.  Certificate  as  Evidence.  If  respondent  did  not  file  amendments,  or 
the  judge  correct  the  statement,  the  certi^cate  of  that  fact  by  the  judge  is 
sufficient.  Redmond  v.  Gulnac,  5  Cal.  148.  The  judge's  certificate  appended 
to  the  record  certified  only  that  such  record  contained  all  testimony  "taken" 
at  the  trial.  Held,  insufficient  to  bring  the  case  within  chapter  82,  Laws 
1893  N.  D.,  which  requires  that  all  evidence  "offered"  in  such  cases  "shall 
be  taken  down  in  writing,"  and  that  "all  evidence  taken  as  provided  by  this 
section  shall  be  certified  by  the  judge."    First  Nat.  Bank  of  Devil's  Lake  v. 

Merchants'  Nat    Bank  of  Devil's  Lake  et  al., N.  D ,64  N.  W.  941, 

As  the  statute  requires  specificalion  of  the  particular  grounds  upon  which 
the  moving  party  will  rely,  in  a  bill  of  exceptions  or  statement,  it  is  not 
sufficient  that  specifications  of  errors  of  law,  or  particulars  in  which  the 
evidence  is  insufficient,  be  contained  in  the  notice  of  intention,  or  elsewhere, 
except  when  the  motion  for  new  trial  is  made  upon  the  minutes  of  the  court. 

Chandler  v.  Kennedy, . . . .  S.  D ,  65  N.  W.  439.     Order  Ex  Parte.     See, 

as  to  ex  parte  orders  extending  the  time  for  settlement  of  bill  of  exceptions, 
and  settling  the  bill  without  an  order  extending  the  time,  Johnson  v.  Nor. 
Pac,  R.  Co.,  1  N.  D.  354,  48  N.  W.  227,  cited  under  sec.  5093.  Neglect  of 
Judge.  The  trial  judge  cannot  be  said  to  have  neglected  to  settle  a  bill  of 
exceptions,  unless  it  has  first  been  engrossed  as  settled  by  him,  and  then 
presented.     Edwards  &  McCullough  Lum.  Co.  v.  Baker,  2  N.  D.  289,  54  N. 

W.  1026.     Consult  also  Goose  River  Bank  v.  Gil  more  et  al., N.  D , 

54  N.  W.  1032.  Agreed  Statement.  An  agreed  statement  of  facts,  upon 
which  an  ordinary  action  at  law  is  submitted,  is  mere  evidence,  and  must 
be  brought  into  the  record  by  bill  of  exceptions  or  statement.  Sweet  et  al. 
V.  Myers  et  al  3  S.  D.  324, 53  N.  W.  187.  See  also  St.  Croix  Lum.  Co.  v.  Pen- 
nington, 2  Dak.  472,  11  N.  W.  497;  Raymond  v.  Spicer,  6  Dak.  45,  50  N.  W. 
399;  Leonard  V.  Warriner,  20  Wis.  41.  Stipulation.  The  attorneys  for  the 
parties  cannot  stipulate  what  should  be  considered  a  bill  of  exceptions  or 
statement,  and  thus  dispense  with  the  settlement  of  the  bill  and  the  signing 
thereof  by  the  judge.  Raymond  v.  Spicer  and  Leonard  v.  Warriner,  supra; 
Coonrod  v.  Anderson  (Ark),  18  S.  W.  373;  Ins.  Co.Jv.  Harris,  108  Ind.  392;  9 
N.  E.  299;  Abrahams  v.  Sheean,  27  Minn.  401,  7  N.  W.  822;  Ins.  Co.  v.  De- 
Graff,  12  Mich.  10;  Haynes  v.  City  of  Cape  May  (N.  J.  Err.  &  App.)  19  Atl. 
176;  Howard  v.  Ross  (Wash.),  28  Pac.  526.  The  agreement  of  the  attorneys 
for  the  parties  is  not  sufficient,  but  the  bill  must  be  settled  by  the  judge. 
Gee  V.  Terris,  55  Cal.  381. 


74  CODE  OF  CIVIL  PROCEDURE 

2.  Two  Methods— Clerk— Jurisdiction.  Under  this  section  (5083  C. 
L.)  a  party  desiring'  to  have  a  bill  of  exceptions  settled  may  pursue  one  of 
two  methods:  First,  after  the  draft  of  the  bill  and  amendments  if  any,  are 
prepared  and  served,  the  proposed  bill  and  amendments  may  be  presented  by 
the  party  seeking  the  settlement,  to  the  judge  upon  five  days'  notice  to  the 
adverse  party;  or,  secondly,  the  party  seeking  the  settlement  may  deliver 
the  proposed  bill  and  amendments  to  the  clerk,  for  the  judge.  Pollock  v. 
Aikens,  Cir.  Judge,  4  S.  D.  374,  57  N.  W.  1.  When  a  draft  of  a  proposed 
bill,  and  amendments,  if  any,  has  been  filed  with  the  clerk,  this  shows  that 
the  party  taking  these  steps  intended  that  the  bill  and  amendments  should 
be  presented  to  the  judge  through  the  clerk's  office.  When  a  clerk  has  re- 
ceived and  filed  such  papers  in  his  office  they  are  in  his  custody,  and  are  pa- 
pers belonging  to  the  case.  In  the  latter  case  it  is  the  clerk's  duty  to  pre- 
sent the  bill  and  amendments  to  the  judge  if  he  be  within  the  county;  if  not, 
upon  written  notice  of  the  party,  it  is  his  duty  to  forward  them  to  the  judge; 
otherwise  the  clerk  must  deliver  them  to  the  judge  immediately  upon  his 
return.  Id.  After  a  paper  has  been  properly  received  and  filed  by  the  clerk 
and  has  been  taken  from  the  files  with  his  consent  by  an  attorney  of  the 
court,  and  a  receipt  given  for  the  same  by  such  attorney,  they  are  in  con- 
templation of  law  in  possession  of  the  clerk  while  absent  from  his  office. 
The  clerk  loses  no  actual  control  of  them  at  any  time.  Id.  A  bill  of  excep- 
tions and  umendments  having  been  delivered  to  the  clerk  for  the  judge,  the 
jurisdiction  to  settle  the  same  continues  until  it  is  settled  or  they  are  with- 
drawn' by  consent  of  parties  and  the  clerk's  filing  endorsement  thereon  is 
cancelled.  The  clerk  cannot,  by  a  failure  to  present  the  bill  and  amend- 
ments to  the  judge,  nor  the  judge's  delay  or  failure  to  settle  the  same,  de- 
prive a  party  of  a  legal  right  to  have  the  bill  settled.  Id.;  Kellam,  J.,  dis- 
senting. 

EXCEPTIONS  AFTER  JUDGMENT  §  5084,  Comp.  Laws,  § 
5468,  Rev.  Codes,  N.  D.  Exceptions  to  any  decision  made  after 
judgment,  may  be  presented  to  the  judge  at  the  time  of  such 
decision,  and  may  be  settled  or  noted  as  provided  in  section 
5082,  and  a  bill  thereof  may  be  presented  and  settled  after- 
wards, as  provided  in  section  5083,  and  within  like  periods  after 
entry  of  the  order,  upon  appeal  from  which  such  decision  is  re- 
viewable. 

[Sec.  5468,  Rev.  Codes  N.  D.,  is  the  same,  except  that  where  reference 
is  made  to  sec.  5082,  Comp.  Laws,  it  refers  to  sec.  5465,  Rev.  Codes,  and 
where  this  section  refers  to  sec.  5088,  Comp.  Laws,  the  N.  D.  section  refers 
to  sec.  5467,  Rev.  Codes.] 

Sec.  282  C.  C.  P.;  Levisee  p.  83;  Wait's  Code  §  268;  Harst  Pr. 
Deer  Coie,  §  65L 


EXCEPTIONS.  75 

Consult  sees.  5082,  5083,  5093,  Comp.  Laws;  sec.  5565,  5477,  Rev.  Codes 
N.  D.,  and  cases  cited  under  those  sections. 

Wlien  Taken  and  Signed.  The  exceptions  should  be  taken  at  the 
time  of  the  ruling  or  instruction  complained  of,  and  must  be  settled,  allowed 
and  signed  by  the  judge  in  the  manner,  upon  the  notice,  and  within  the  time 
pointed  out  by  the  statute.  St.  Croix  Lum.  Co,  v.  Pennington,  2  Dak.  467, 
11  N.  W.  497;  MuUer  v.  Ehlers,  1  Otto  250;  Bryan  v.  Maume,  28  Cal.  241; 
Kavanaugh  v.  Maus,  28  Cal.  263.  See,  however,  as  to  instructions,  sec.  5049 
and  cases  there  cited.  After  judgment  is  entered,  a  bill  embracing  excep- 
tions may  be  settled,  under  sec.  5083  and  5084;  no  legal  reason  appears  why 
a  bill  or  statement  was  not  settled  in  this  case  after  the  motion  for  a  new 

trial  was  denied.     Goose  River  Bank  v.  Gilmore  et  al, N.  D. ,  54  N. 

W.  1082.     Consult  Wood  v.  Nissen,  2ND.  26,  49  N.  W.  103. 

APPLICATION  TO  SUPREME  COURT.  §5085  Comp.  Laws; 
§  5469  Rev.  Codes  N.  D.  If  the  judge  in  any  case  refuse  to 
allow  an  exception  in  accordance  with  the  facts,  the  party  de- 
siring the  bill  settled  may  apply  by  petition  to  the  supreme 
court  to  prove  the  same.  The  application  may  be  made  in  the 
mode  and  manner,  and  under  such  regulations,  as  that  court 
may  prescribe,  and  the  bill,  when  proven,  must  be  certified  by 
a  justice  thereof  as  correct,  and  filed  with  the  clerk  of  the 
court  in  which  the  action  was  tried,  and  when  so  filed  it  has 
the  same  force  and  effect  as  if  settled  by  the  judge  who  tried 
the  cause. 

[Sec.  5469  Rev.  Codes  N.  D.,  is  the  same,  except  that  the  word  "state- 
ment" is  substituted  in  place  of  the  word  "bill,"  and  the  term  "in  the  mode 
and  manner"  is  changed  to  read  "in  the  manner."    (Am'd.  Rev.  Com'rs.)] 

Sec.  283  C.  C.  P.  Levisee  p.  83  Harst  Pr.  Deer.  Code  |  652. 

Must  Besort  to  Trial  Judge.  Where  there  is  any  remedy  for  refusal 
of  a  trial  judge  to  sign  a  fair  bill  of  exceptions,  it  must  be  resorted  to  before 
the  case  is  passed  upon  by  the  appellate  court;  and  a  fair  bill  of  exceptions 
should  be  first  settled,  before  presenting  the  case  to  the  Supreme  Court 
upon  the  merits.  Bellows  v.  Tod  et  al  (la. ),  3  N.  W  102.  Presumption  of 
Correctness.  In  an  application  to  this  court  under  this  section,  to  settle  a 
bill  of  exceptions,  on  the  ground  that  the  trial  judge  refuses  to  settle  the 
same  according  to  the  factSj  every  presumption  is  in  favor  of  the  correctness 
of  the  bill  as  settled  by  the  trial  judge,  and  it  will  stand  unless  its  incor- 
rectness is  shown.  Bill  of  exceptions  amended.  Baird  et  al  v.  Gleckler,  3 
S.  D.  300,  52  N.  W.  1097.  Record  Destroyed.  Consult  Golden  Terra  Min. 
Co.  V.  Smith  et  al,  2  Dak.  374,  11  N.  W.  98,  where  it  was  held,  that  the  over- 
ruling of  a  motion  for  a  new  trial,  made  upon  the  ground  of  the  destruction 


76  CODE  OF  CIVIL  PROCEDURE. 


of  the  record  and  evidence  after  the  submission  of  the  case  and  before  the 
decision  of  the  trial  court,  no  bill  of  exceptions  having  been  settled,  was  not 
error  under  the  circumstances  of  that  case. 

EX-JUDGE  MAY  SETTLE— STATEMENT.  §  5086  Comp.  Laws; 
§  5470,  Rev.  Codes  N.  D.  A  judge  may  settle  and  sign  a 
a  bill  of  exceptions  after,  as  well  as  before  he  ceases  to  be  such 
judge.  If  such  judge,  before  the  bill  of  exceptions  is  settled, 
dies,  is  removed  from  office,  becomes  disqualified,  is  absent 
from  the  state,  or  refuses  to  settle  the  bill  of  exceptions,  or  if 
no  mode  is  provided  by  law  for  the  settlement  of  the  same,  it 
shall  be  settled  and  certified  in  such  manner  as  the  supreme 
court  may  by  its  order  or  rules  direct.  Judges  of  the  district 
court  and  the  supreme  court  shall  respectively  possess  the  same 
power  in  settling  and  certifying  statements  as  is  by  this  sec- 
tion conferred  upon  them  in  settling  and  certifying  bills  of  ex- 
ceptions.    (Sec.  5,  chap.  21,  Laws  1887,  Dak.) 

[Sec.  6470,  Rev.  Codes  N.  D.,  is  the  same,  except  that  it  employs  the 
term  "statement  of  the  case"  instead  of  "bill  of  exceptions;"  and  the  last 
sentence  in  section  5086,  Comp.  Laws,  is  omitted  from  the  N.  D.  section. 
(Am'd.  Rev.  Com  Vs.)] 

Object  of  Section.  This  section  was  only  intended  to  supply  a  man- 
ner in  which  a  bill  might  be  settled  in  a  case  in  which  otherwise  none  could 
be  settled.  It  does  not  authorize  this  court  to  first  examine  into  and  de- 
termine each  application,  and  as  to  whether  the  applicant  was  entitled  to 
have  a  bill  settled;  but  when  an  exigency  named  in  the  section  is  shown  to 
exist,  it  is  the  duty  of  this  court  to  direct  some  manner  in  which  a  bill  may 
be  settled;  and  this  will  generally  be  done  by  authorizing  some  other  trial 
judg'e  to  act,  and  his  decision  will  be  subject  to  review  in  tbe  same  manner 
as  if  such  action  were  taken  by  the  trial  judge.  Severson  v.  Mil.  Mechan- 
ic's Mutual  Ins.  Co.,  3  S.  D.  412,  53  N.  W.  860.  In  the  case  last  cited  the 
question  whether  the  defendant,  after  the  lapse  of  three  years  from  the  en- 
try of  judgment,  may  have  a  statement  settled,  and  the  question  of  dili- 
gence by  the  moving  party,  were  referred  to  a  trial  judge  for  his  action. 
Jurisdiction.  When  the  original  papers  are  sent  to  the  Supreme  Court  on 
appeal,  and  the  case  has  been  argued  and  submitted  in  that  court  upon  such 
record,  the  trial  court  has  thereafter  no  authority  or  power  to  amend  or 
correct  such  record,  unless,  upon  application  to  the  Supreme  Court,   the 

record  is  remanded  for  such  purposes.     Moore  v.  Booker  et  al, N.  D 

62  N.  W.  607  (611,  on  rehearing);  Chesley  v.  Boom  Co.,  39  Minn.  83,  38  N. 
W.  769;  Spensley  v.  Irs.  Co.,  62  Wis.  443,  22  N.  W.  740.  The  court  in  the 
North  Dakota  case  supra,  referring  to  the  lack  of  harmony  among  the  de- 


OF  NEW  TRIALS.  77 


cisions  upon  the  question  of  the  power  of  the  trial  court  to  make  orders  or 
amend  the  record  in  a  case  while  pending  on  appeal,  cite  the  following 
cases  to  the  point  that  the  trial  court  has  no  such  power,  viz:  Levi  v.  Kar- 
rick,  15  la.  444;  Carmichael  v.  Vanderburr,  51  la.  225,  1  N.  W.  477;  Perry 
v.  Breed,  117  Mass.  155;  Penrice  v.  Wallis,  37  Miss.  172;  Keysor  v.  Farr, 
105  U.  S.  265;  State  v.  Jackson  (N.  C),  16  S.  E.  906.  In  Wisconsin  the 
record  was  amended  by  the  trial  court,  but  the  record  still  remained  in  that 
court,  no  transcript  having  been  sent  up  though  the  appeal  had  been  per- 
fected. State  v.  Town  Bjard,  69  Wis.  264,  34  N.  W.  123.  But  see  Rehms- 
tedth  v.  Briscoe,  55  Wis.  616,  13  N.  W.  687.  To  the  point  that  the  lower 
court  had  such  power,  the  following  authorities  were  cited  in  Moore  v. 
Booker  et  al,  supra,  viz:  National  City  Bank  v.  N,  Y.  Gold  Exchange 
Bank,  97  N.  Y.  645;  Elliott,  App.  Proc.  sec.  205;  the  latter  authority  draw- 
ing attention  to  the  difference  between  the  record  of  the  trial  (iourt  and  that 
on  appeal,  and  holding  the  proposition  that  over  the  former  power  remains 
in  the  trial  court  while  over  the  latter  it  resides  exclusively  in  the  appel- 
late court. 


CHAPTER  VIII. 


Art.  9,  Chap.  12,  Code  of  Civil  Procedure. 
of  new  trials. 

NEW  TRIAL  DEFINED.  §  5087,  Comp.  Laws;  §  5471,  Rev. 
Codes  N.  D.  A  new  trial  is  a  re-examination  of  an  issue  of  fact 
in  the  same  court,  after  a  trial  and  decision  by  a  jury  or  court, 
or  by  referees. 

Sec.  285  C.  C.  P.;  Levisee  p.  84;  Harst  Pr.  Deer.  Code  §  656. 

Demurrer  Not  Reviewable.  Upon  {T  motion  for  new  trial,  the  decision 
of  the  court  sustaining  or  overruling  a  demurrer  cannot  be  reviewed,  for  a 
new  trial  is  a  re-examination  of  an  issue  of  fact.  Ross  v.  Wait  et  al  2  S.  D.  638, 
51  N,  W.  866;  Mason  v.  Austin,  46  Cal.  385;  Jacks  v.  Buell,  47  Cal.  162. 
Ruling  on  Evidence.  But  the  ruling  of  the  court  on  objection  to  the  intro- 
duction of  evidence  on  the  ground  that  the  complaint  does  not  state  a  cause 
of  action,  is  reviewable  upon  such  motion.  Ross  v.  Wait  et  al,  supra;  Wau- 
genheim  v.  Gramah,  39  Cal.  175. 

CAUSES  FOR.  §  5088,  Comp.  Laws;  §  5472,  Rev.  Codes  N. 
D.  The  former  verdict  or  other  decision  may  be  vacated  and 
a  new  trial  granted  on  the  application  of  the  party  aggrieved, 


78  CODE  OF  CIVIL  PROCEDURE. 

for  any  of  the  following  causes,  materially  affecting-  the  sub- 
stantial rights  of  such  party: 

1.  Irregularity  in  the  proceedings  of  the  court,  jury,  or 
adverse  party,  or  any  order  of  the  court,  or  abuse  of  discretion, 
by  which  either  party  was  prevented  from  having  a  fair  trial. 

2.  Misconduct  of  the  jury;  and  whenever  any  one  or  more 
of  the  jurors  have  been  induced  to  assent  to  any  general  or  spe- 
cial verdict,  or  to  a  finding  on  any  question  submitted  to  them 
by  the  court,  by  a  resort  to  the  determination  of  chance,  such 
misconduct  may  be  proved  by  the  affidavit  of  any  one  of  the 
jurors. 

3.  Accident  or  surprise,  which  ordinary  prudence  could 
not  have  guarded  against. 

4.  Newly  discovered  evidence,  material  to  the  party  mak- 
ing the  application,  which  he  could  not,  with  reasonable  dili- 
gence, have  discovered  and  produced  at  the  trial. 

5.  Excessive  damages,  appearing  to  have  been  given  un- 
der the  influence  of  passion  or  prejudice. 

6.  Insufficiency  of  the  evidence  to  justify  the  verdict  or 
other  decision,  or  that  it  is  against  law. 

7.  Error  in  law,  occurring  at  the  trial  and  excepted  to  by 
the  party  making  the  application. 

Sec.  286  C.  C.  P.;   Levisee  p.  84;  Harst  Pr.  Deer.  Code  §  657. 
Consult  the  next  three  sections,  and  decisions  thereunder. 

SUBDIVISION  1.     Irregularity— Abuse  of  Discretion. 

Consult  also  decisions  under  subdivisions  2,  5  and  7. 

See,  for  New  Trials  in  Criminal  Cases,  sec.  7449  to  7451,  Comp.  Laws, 
and  decisions  thereunder,  and  the  corresponding  sections  of  tlev.  Codes, 
N.  D.  Also,  under  the  chapter  on  Appeals  (sec.  5213  to  5239,  Comp.  Laws), 
will  be  found  many  decisions  touching  questions  of  like  character  as  those 
found  treated  under  this  section,  particularly  sections  5213,  5235,  5236,  5237, 
Comp.  Laws;  sec.  5603,  5625,  5626,  5627,  Rev.  Codes,  N.  D. 

7.     Irregularities. 

(a).  Incompetent  Offers — Slanderous  Statements.  Where  a  party 
is  prevented  from  having  a  fair  trial,  o*"  if  any  of  his  rights  in  issue  are  prej- 
udiced by  misconduct  of  his  adversary's  counsel  at  the  trial,  either  by  re- 
peated or  persistent  offers  of  incompetent  or  irrelevant  testimony,  containing 
insinuations  and  charges  prejudicial  to  him,  or  by  slanderous  statements 


IRREGULARITY — ABUSE  OF  DISCRETION.  79 

made  in  addressing  the  jury,  or  if  such  misconduct  prompted  or  influenced 
the  jury  to  render  a  verdict  not  warranted  by  the  evidence,  or  which  they 
presumably  would  or  could  not  reasonably  have  rendered  had  there  been  no 
such  misconduct,  a  new  trial  should  be  granted.  Burdick  v.  Haggart,  4 
Dak.  13,  22  N.  W.  589.  Misstating  Evidence.  If  counsel  in  the  argument 
of  a  case  persists,  against  the  objections  of  counsel  for  the  opposite  party,  in 
stating  facts  to  the  jury,  not  in  evidence  in  the  case,  calculated  and  intended 
to  arouse  the  prejudice  of  the  jury  against  the  adverse  party,  it  is  an  irreg- 
ularity for  which  a  new  trial  may  be  granted.  Lindsay  v.  Pettigrew,  3  S. 
D.  199,  52  N.  W.  873.  Subd.  1,  of  sec.  5088,  Comp.  IL.aws,  is  broad  enough  to 
include  any  such  irregularity  or  misconduct  of  an  attorney,  and  such  mis- 
conduct may  be  brought  before  the  court  on  motion  for  new  trial,  supported 
by  affidavit.  Id;  Burdick  v.  Haggart,  4  Dak.  13,  22  N.  W.  589;  Dowdell  v. 
Wilcox,  64  Iowa  721,  21  N.  W.  147;  Hall  v.  Wolff,  61  Iowa  559,  16  N.  W.  710; 
Hayne,  New  Trials,  sec.  50;  Pierce  v.  Manning,  1  S.  D.  306,  51  N.  W.  332; 
and  where  this  irregularity  was  made  ground  on  application  for  a  new  trial, 
the  facts  being  presented  by  affidavit,  and  the  application  denied,  the  ruling 
is  assignable  as  error  in  this  court.  Lindsay  v.  Pettigrew,  3  S.  D.  199,  52  N. 
W.  873. 

Counsel — Freedom  of  Speech.  The  fullest  freedom  of  speech  within 
the  duty  of  his  profession  should  be  accorded  counsel;  but  it  is  license,  not- 
freedom  of  speech,  to  travel  out  of  the  record,  basing  his  argument  on  facts 
and  appealing  to  prejudices  irrelevant  to  the  case.  Lindsay  v.  Pettigrew, 
supra;  Thomp.  on  Tr.  sec.  963;  Hall  v.  Wolf,  supra;  People  v.  Carr,  64 
Mich.  702,  31  N.  W.  590;  Turner  v.  State,  4  Lea,  206;  Festner  v.  R.  R.  Co., 
17  Neb.  280,  22  N.  W.  557;  Paper  Co.  v.  Banks,  15  Neb.  20,  16  N.  W.  833; 
Ferguson  v.  State,  49  Ind.  33;  Koelges  v.  Ins.  Co.,  57  N.  Y.  638;  Mitchum  v. 
State,  11  Ga.  615;  Rolfe  v.  Rumford,  66  Me.  564;  Bullard  v.  R.  R.  Co.,  64  N. 
H.  27,  5  Atl.  838;  BuUiner  v.  People,  95  111.  396;  Brown  v.  State,  60  Ga.  210; 
Northington  v.  State,  14  Lea,  424;  Flint  v.  Com.,  81  Ky.  186;  Sullivan  v. 
State,  66  Ala.  48;  Tucker  v.  Henicker,  41  N.  H.  317;  Gallinger  v.  Traffic 
Co.,  67  Wis.  529,  30  N.  W.  790;  Henry  v.  R.  R.  Co.,  66  la.  52,- 23  N.  W.  260; 
Palmer  v.  R.  R.  Co.  (Idaho),  13  Pac.  425.  Contempt— Arbitrary  Action. 
The  judgment  of  the  trial  court  in  punishing  for  criminal  contempt  should 
not  be  reversed  unless  the  court  exercised  its  authority  in  a  capricious,  op- 
pressive, or  arbitrary  manner.  Noyes  et  al  v.  Belding,  sheriff  et  al,  5  S.  D. 
603,  59  N.  W.  1069.  Dismissal— Receiver.  It  is  not  error  to  refuse  to  dis- 
charge a  receiver,  even  where  both  parties  consent,  his  accounts  not  hav- 
ing been  passed;  nor  did  the  court  err  in  setting  aside  a  dismissal  of  the 
action,  on  application  of  the  receiver,  where  judgment  of  dismissal  had  been 
rendered  without  making  provision  for  settlement  of  the  receiver's  ac- 
counts, or  for  his  compensation.    Hoffman  v.  Bank  of  Minot, N.  D , 

61  N.  W.  1031;  High  on  Receivers,  sec.  837;  Fay  v.  Bank,  Har.  (Mich.)  195; 
Crook  V.  Findley,  60  How.   Pr.  375.     Insiifficient  Complaint— Judgment. 


80  CODE  OF  CIVIL  PROCEDURE. 

Where  a  complaint  has  been  adjudged,  upon  the  trial,  to  be  insufficient  to 
state  a  cause  of  action,  and  the  jury  discharged,  trial  postponed,  and  plain- 
tiff allowed  time  to  serve  an  amended  complaint,  but  no  time  therefor  is 
fixed,  a  judgment  entered  without  notice  before  expiration  of  thirty  days 
from  service  of  an  amended  complaint,  and  in  absence  of  an  answer,  will  be 
bet  aside,  the  defendant  having  duly  served  a  meritorious  answer.     Bell  v. 

Thomas,  . . . .  S.  D ,  63  N.  W.  907;  People  v.  Rains,  23  Cal.  127;  Low  v. 

Graydon,  14  Abb.  Prac.  443.  "Withdrawal  of  Attorney.  Where  an  at- 
torney withdraws  an  answer  and  his  appearance,  in  hostility  to  his  client, 
and  the  grounds  and  reasons  therefor  are  reduced  to  writing,  presented  to 
the  court  and  filed  before  a  default  is  declared,  and  the  court  thereupon  de- 
clared defendant  to  be  in  default  for  answer,  and  allowed  judgment  against 
him  as  in  default,  such  judgment  is  illegal  in  its  inception,  and  should  be 
set  aside  as  a  matter  of  strict  legal  right  of  the  defendant.     Nichells  v. 

Nichells,  ....  N.  D ,  64  N.  W.  73;  Gaar,   Scott  &  Co.  v.   Spaulding,  2 

N.  D.  414,  51  N.  W.  867;  Herbert  v.  Lawrence,  18  N.  Y.  Supp.  95;  How  v. 
Lawrence,  22  N.  J.  Law,  99;  Ohlquest  v.  Farwell  (la.),  32  N.  W.  277;  Haver- 
ty  V.  Haverty,  (Kan.  Sup.),  11  Pac.  364;  Quinn  v.  Lloyd;  36  How,  Prac. 
378;  Dickerson  v,  Hodges,  (N.  J.  Ch.),  10  Atl.  Ill;  Simpkins  v.  Simpkins 
(Mont.),  36  Pac.  759.  And  this  rule  applies  to  a  divorce  case.  Nichells  v. 
Nichells,  supra;  Yorke  v.  Yorke,  3  N.  D.  343,  55  N.  W.  1095;  Simpkins  v. 
Simpkins,  (Mont.),  36  Pac.  759;  Cottrell  v.  Cottrell,  83  Cal.  457,  23  Pac.  531; 
Bell  V.  Peck,  (Cal.),  37  Pac.  766.  Separate  Trial.  The  discretionary  rul- 
ing of  trial  court  refusing  to  allow  a  separate  trial  in  a  civil  action,  is  not 
reviewable  on  appeal.  Noyes  et  al  v.  Belding,  sheriff,  et  al,  5  S.  D.  603,  59 
N.  W.  1069;  sec.  5035,  Comp.  Laws. 

(6).     Jury — Verdict. 

Oral  Instructions — Waiver.  Where  a  party  sits  by  and  allows  the 
trial  court  to  instruct  the  jury  orallj',  without  objection  or  request  that  they 
be  instructed  in  writing,  the  charge  being  taken  down  by  the  stenographer, 
error  cannot  be  assitrned  upon  this  method  of  giving  instructions,  or  upon 
the  failure  ^f  the  court  to  give  the  charge  to  the  jury  in  writing,  to  be  tak- 
en by  them  in  their  retirement,  nor  upon  an  omission  of  the  court  to  in- 
struct upon  a  point  in  respect  to  which  the   party  asked  no  instruction. 

Fryeetal  v.  Ferguson, S.  D ,61  N.  W.   161;  Stamm   v.  Coates,  4 

Dak.  69,  22  N.  W.  593;  Thompson  on  Trials,  sec.  2378;  Haynes  New  Tr.  & 
App.  sec.  120;  2  Am.  &  Eng.  Ency.  of  Law,  p.  258. 

Mingling'  With  Jury.  It  is  an  irregularity  justifying  granting  anew 
trial,  for  a  party  to  mingle  with  the  jurors  and  converse  with  them  while 
they  are  deliberating  and  in  charge  of  a  bailiff;  and  affidavits  not  denying 
such  acts,  but  explaining  them,  will  not  cure  such  irregularity;  and  such 
irregularity,  though  known,  need  not  be  brought  to  the  attention  of  the 
court  before  verdict  is  rendered.     Peterson  v.  Siglinger,  3  S.  D.  255,  52  N. 


IRREGULARITY — ABUSE  OF  DISCRETION.  81 

W.  1060;  Knight  v.  Inhabitants  of  Preeport,  13  Mass.  21*7;  Com.  v.  Roby,  12 
Pick.  496;  Hare  v.  State,  4  How.  (Miss.),  193;  Martin  v.  Moremock,  32  111. 
485;  May  v.  Ham,  10  Kas.  598;  Oleson  v.  Meader,  40  Iowa,  662;  Cole  v. 
Swan,  4  G.  Green,  (3  la.),  32;  Johnson  v.  Root,  2  Cliff.  108.  Waiver.  A  fail- 
ure of  the  moving  party  to  bring  such  irregularity  to  the  attention  of  the 
trial  court  before  verdict  is  not  a  waiver  of  the  irregularity,  as  the  trial 
court  could  not  have  corrected  the  same.  Peterson  v.  Siglinger,  3  S.  D. 
255,  52  N.  W.  1060;  Oleson  v.  Meader,  40  Iowa,  662;  Hayne,  New 
Trial  &  App.,  p.  103.  Separation  of  Jury.  It  is  not  prejudic- 
ial error  to  allow  the  jury  to  separate  temporarily  without  be- 
ing admonished  not  to  converse,  etc.,  where  under  the  evidence  no  other 
than  the  verdict  rendered  could  have  been  returned.  Kirby  v.  Western  U. 
Tel.  Co.,  4  S.  D.  105,  65  N.  W.  759.  Disregarding  Testimony.  While  it  is 
the  right  of  the  jury,  in  general,  to  judge  of  the  credibility  of  the  witness 
and  the  probative  value  of  his  testimony,  they  have  no  right  arbitrarily  or 
capriciously  to  disregard  testimony  submitted  to  them  by  the  court.  Drew 

et  al  V.  Watertown  F.  Ins.  Co., S.  D ,  61  N.  W.  34;  McMahon  v. 

People,  120  111.  584,  11  N.  E.  883;  Elwood  v.  Tel.  Co.,  45  N.  Y.  553;  Dickin- 
son v.  Bently,  (la.),  45  N.  W.  903.  General  Verdict.  Where  a  jury  renders 
a  general  verdict  against  one  of  two  defendants  composing  a  firm,  it  is  error 
for  the  court,  while  such  verdict  remains  of  record,  to  render  judgment 
against  plaintiff,  dismissing   the  action  as  to  one  member  of  the  firm  with 

costs.     Kellogg,  Johnson  &  Co.  v.  Gilman  et  al, N.  D ,  58  N.  W. 

339.  Judge  Receiving  Verdict.  Where  a  jury  deliberated  upon  its  ver- 
dict until  2  o'clock  A.  M.,  when,  the  judge  having  been  called  to  the  jury 
room,  and  in  the  absence  of  the  officers  of  court,  attorneys  and  parties,  a  ver- 
dict was  delivered  to  the  judge  which  was  declared  by  the  jurors  to  be  their 
verdict,  and  the  jury  was  then  discharged,  the  verdict  being  kept  and 
brought  into  court  that  morning  by  the  judge,  who  delivered  it  to  the  clerk, 
who  recorded  it,  and  plaintiff  (the  verdict  being  for  defendant)  thereupon 
ex'cepted  to  it  and  the  manner  in  which  it  was  received,  lield,  that  the  ver- 
dict was  fatally  irregular,  and  insufficient  to  support  a  judgment  entered 
thereon  against  plaintiff's  objection.  Peart  v.  Chicago,  M.  &  St.  P.  Ry.,  5 
S.  D.  337,  58  N.  W.  806;  Abb.  Tr.  Brief,  181,  and  cases  there  cited;  Bond  v. 
Wood,  69  111.  282;  City  of  Chicago  v.  Rogers,  61  111.  188;  Rosser  v.  McColly, 
9  Ind.  587;  Young  v.  Seymour,  4  Neb.  86;  3  Cooley's  Bl.  Comm.  377. 

2.     Abuse  of  Discretion. 

Amendment — Party  Misled.  Where  a  complaint  alleged  a  balance  of 
proceeds  of  a  sale  in  the  hands  of  defendant  on  the  theory  that  he  had  sold 
property  to  a  third  person  as  agent  of  plaintiff,  the  court  has  power  to  allow 
an  amendment  of  the  complaint  on  the  trial  to  conform  to  the  proof  by  inser- 
tion of  an  allegation  that  defendant  sold  to  itself  property  of  the  plaintiff; 
6— TP 


82  CODE  OF  CIVIL  PROCEDURE. 

and  plaintiff  having  been  so  misled  by  defendant's  conduct  as  to  believe  that 
defendant  had  in  fact  sold  to  a  third  person,  and  defendant's  cashier  having 
without  objection  testified  that  defendant  sold  the  property  to  itself,t/tfW,  it 
was  an  abuse  of  discretion  to  refuse  to  allow  plaintiff  to  amend  his  complaint 

to  conform  to  the  proof.      Anderson  v.  First  Nat.  Bank  of  Grand  Forks 

N.  D ,  64  N.  W.  114;  Cook  v.  Croysan  (Ore.),  36  Pac.  532;  Drew  v.  Hicks 

(Cal.),  35  Pac.  563  (565);  Cooper  v.  Wood  (Colo.  App.),  27  Pac.  884;  Yetzer 
et  al.  v.  Young,  3  S.  D.  263,  52  N.  W.  1054;  Jenkinson  et  al.  v.  City  of  Ver- 
million, 3  S.  D.  238,  52  N.  W.  1066;  Lefler  v.  Sherwood,  21  Hun.  573;  Smith 
V.  Savin,  141  N.  Y.  315,  36  N.  E.  338;  Gulp  v.  Steere  (Kan.  Sup.),  28.  Pac. 
987;  Spice  v.  Steinruck,  14  Ohio  St.  213;  Esch  v.  Ins.  Co.  (la.),  43  N.  W.  229; 
Greenfield  Sav.  Bank  v.  Sinons,  133  Mass.  415;  Terry  v.  Munger,  121  N.  Y. 
161,  24  N.  E.  272;  Braithwaite  v.  Aiken  etal.,  2  N.  D.  57,  49  N.  W.  419. 
Proof.*  It  is  not  an  abuse  of  discretion  for  the  court  to  order  a  complaint 
amended  so  as  to  conform  to  proof  on  trial  to  court,  in  foreclosure  of  an  in- 
cumbrance, to  show  a  purchase  of  the  mortgaged  premises  by  two  jointly 
instead  of,  as  originally  alleged,  by  one  as  agent  of  another.  Moore  v. 
Booker  et  al. . .  .S.  D. . . .,  62  N.  W.  607;  Schley  v.  Fryer,  100  N.  Y.  71,  2  N. 
E.  280.  It  is  abuse  of  discretion  to  refuse  to  allow  plaintiff  to  amend  his 
complaint  to  conform  to  proof,  where  he  had  been  misled  as  to  the  sale  by 
defendant  of  property  to  recover  value  of  which  the  suit  is  brought.  An- 
derson V.  First  Nat.  Bank  of  Grand  Forks, N.  D ,  64  N.  W.  114;  Cook 

V.  Croisan  (Or.),  36  Pac.  532;  Drew  v.  Hicks  (Cal.),  35  Pac.  563;  Cooper  v. 
Wood  (Colo.  App.)  27  Pac.  884;  Yetzer  v.  Young,  3  S.  D.  263,  52  N.  W.  1054; 
Jenkinson  v.  City  of  Vermillion,  3  S.  D.  238,  52  N.  W.  1066;  j  Lefler  v.  Sher- 
wood, 21  Hun.  573.  Amended  Appeal  Bond.  It  is  not  an  abuse  of  discre- 
tion on  the  part  of  the  trial  court,  to  refuse  leave  to  file  an  amended  appeal 
bond  on  an  appeal  from  a  justice's  court  to  the  circuit  court,  where  the  case 
had  been  taken  to  the  supreme  court  on  appeal  from  an  order  of  the  circuit 
court  dismissing  the  appeal  from  the  justice's  court,  such  order  having  been 
affirmed  and  the  remittitur  having  been  sent  down  to  the  circuit  court.  The 
application  for  leave  to  file  an  amended  appeal  bond  is  addressed  to  the 
sound  judicial  discretion  of  the  trial  court.  Rudolph  v.  Herman,  4  S.  D. 
203,  56  N.  W.  122.  The  application  should  have  been  made  to  the  trial  court 
before  it  made  the  order  dismissing  the  appeal,  or  in  connection  with  a  mo- 
tion to  vacate  or  set  aside  the  order.     Id. 

Setting  Aside  Judgment.  An  order,  in  application  under  sec.  4939, 
Comp.  Laws,  refusing  to  set  a,side  a  judgment  entered  upon  a  written  stipu- 
lation of  the  parties,  will  not  be  reversed  for  abuse  of  discretion,  where  the 
record  presents  neither  the  answer  of  defendant  nor  its  contents,  nor  con- 
tains an  affidavit  of  merits.  Pettigrew  et  al  v.  City  ef  Sioux  Falls  et  al,  5  S. 
D.  646,  60  N.  W.  27;  Ellis  v.  Jones,  6  How.  Pr.  296.  Jurisdiction  and  Fore- 
closure.    The  proviso  in  section  5411  Comp,  Laws,  regulating  foreclosures 


MISCONDUCT  OF  THE  JURY.  83 

by  advertisement,  is  intended  to  confer  upon  judges  of  the  District  Courts 
certain  authority,  to  be  exercised  at  their  discretion,  which  discretion  is 
non-reviewable,  except  in  cases  of  abuse,  and  the  record  in  this  case  fails  to 
show  abuse  of  discretion.     McCann  v.  Mortgage,  Bank  &  Investment  Co., 

Williamson  v.  Same,  Halvorson  v.  Same N.  D ,54  N.  W.  1026;  but 

compare  Commercial  Nat.  Bank  v.  Smith  et  al,  1  S.  D.  28,  44  N.  W.  1024. 
Discontinuance — Judgment.  Where,  under  the  facts  stated,  defendant  be- 
lieving the  case  was  discontinued,  returned  home  and  in  his  absence  judg- 
ment was  rendered  against  him,  lield,  a  refusal  to  vacate  the  judgment  was 

misuse  of  discretion.      Searles  v.  Christensen, S.  D ,  60  N.  W.  29; 

Millspaugh  v.  McBride,  7  Paige,  509;  Sharp  v.  New  York,  31  Barb.  578; 
Hanson  v.  Michelson,  19  Wis.  525;  Ordway  v.  Suchard,  31  Iowa,  481;  Griel  v. 
Vernon,  65  N.  C.  76;  Allen  v.  Hoffman,  12  111.  App.  573;  Baxter  v.  Chute,  50 
Minn.  164,  52  N.  W.  379;  Whereatt  v.  Ellis,  70  Wis.  207,  35  N.  W.  314;  Black 
on  Judg.  sec.  341.  New  Trial.  The  decision  of  the  trial  court  in  granting  or 
refusing  a  new  trial  will  not  be  disturbed  unless  it  appears  that  there  has 

been  an  abuse  of  discretion.    Grant  v.  Grant, . .  .S.  D ,  60  N.  W.  743;  16  Am. 

&Eng.  Encyc.  of  Law,  693;  Elliott,  App.  Proc.  sec.  603.  Fraud — Intent.  In 
an  action  of  claim  and  delivery,  involving  question  of  fraudulent  intent  in 
making  a  financial  statement  in  a  transaction  of  sale,  held,  under  the  facts 
stated,  that  the  trial  court  did  not  abuse  its  discretion  in  denying  motion  for 
new  trial.  Tootle  et  al  v.  Petrie,  sheriiT,  . .  .S.  D. . .,  65  N.  W.  43;  Lumber 
Co.  V.  Ott,  142  U.  S.  622,  12  Sup.  Ct.  318.  Re-direct  Examination.  It  is 
within  the  sound  discretion  of  a  trial  court  to  allow  any  question  to  be  asked 
on  re-direct  examination  that  was  proper  and  admissible  on  the  examination 

in  chief.     Baird  et  al  v.  Gleckler, S.  D ,64  N.  W.   118;  Hemmens 

V.  Bentley,  32  Mich.  89.  Continuance.  An  application  for  continuance 
during  trial  is  addressed  to  discretion  of  the  court,  and  its  decision  will  not 
be  reviewed  unless  its  discretion  appears  to  have  been  abused.      Billingsley 

V.  Hilesetal,   S.  D ,  61  N.  W.  687.     Discretion— Presumption. 

Where  an  order  may  be  made  in  court's  discretion,  this  court  will  presume 
that  it  was  so  made,  in  absence  of  evidence  to  contrary.  Ormsby  v.  Conrad 
et  al,  4  S.  D.  599,  57  N.  W.  778. 

SUBDIVISION  2.     Misconduct  of  the  Jury. 

Consult  decisions  under  subdivisions  1,  5  and  7. 

Juror's  Testimony  Inadmissible.  The  testimony  of  jurors  is  inad- 
missible in  support  of  a  motion  to  set  aside  a  verdict  on  the  ground  of  mis-, 
take,  irregularity,  or  misconduct  of  the  jury,  or  of  some  one  or  more  of  the 
panel.  Murphy  v.  Murphy,  1  S.  D.  316,  47  N.  W.  142;  Polhemus  v.  Heiman, 
50  Cal.  438;  Boyce  v.  Stage  Co.,  25  Cal.  474;  Ulrick  v.  Dak.  Loan  &  Trust 
Co.,  2  S.  D.  285,  49  N.  W.  1054  (on  rehearing),  51  N.  W.  1023.  "auotient 
Verdict."  Nor  is  such  evidence  admissible  to  impeach  their  verdict  on  the 
ground  that  the  Same  is  what  is  known  as  a  "quotient  verdict."    '  Ulrick  v, 


84  CODE  OF  CIVIL  PROCEDURE. 

Dak.  Loan  &  Trust  Co.,  supra.  Such  affidavits  will  not  be  received  for  that 
purpose,  unless  authorized  by  statute,  and  only  then  upon  the  grounds  and 
in  the  manner  permitted  by  statute.  Gaines  v.  White,  sheriff,  2  S.  D.  410, 
47  N.  W.  624.  Damages.  Nor  will  the  verdict  be  set  aside  because  the  jury 
did  not  find  damages.  Id.  See  upon  this  subject,  nisi  prius  decision  of 
Judge  Shannon  in  Territory  v.  Taylor  et  al,  1  Dak.  459. 

SUBDIVISION  3.     Accident  or  Surprise. 

Great  Caution.  An  application  for  a  new  trial  on  the  ground  of  sur- 
prise should  be  granted  with  great  caution;  the  party  alleging  surprise 
should  be  required  to  show  it  conclusively,  and  by  the  most  satisfactory  evi- 
dence within  his  reach.  Gaines  v.  White,  sheriff,  2  S.  D.  410,  47  N.  W.  524. 
Continuance — Waiver.  If  a  party  claiming  surprise  upon  the  trial,  so  that 
he  is  unable  to  present  his  case  upon  its  merits,  he  should  inform  the  court 
and  apply  for  a  continuance.  If  he  fails  to  do  this  he  waives  his  want  of 
preparation,  and  all  right  afterwards  to  object.  Gaines  v.  White,  supra;  3 
Grah.  &  W.  New  Trials,  894;  Turner  v.  Morrison,  11  Cal.  21;  Washer  v. 
White,  16  Ind.  136;  Shellhous  v.  Ball,  29  Cal.  608;  Alexander  v.  Byron,  2 
Johns.  Cases,  318.  Discretion — Review.  An  application  for  a  continuance, 
or  a  motion  for  a  new  trial,  based  upon  the  ground  of  surprise,  being  ad- 
dressed to  the  sound  discretion  of  a  trial  court,  its  rulings  thereon  will  be 
reviewed  only  where  there  is  manifestly  an  abuse  of  such  discretion.  See 
Gotzian«&Co.  v.  McCollum,  sheriff S.  D ,  65  N.  W.  1068.  De- 
struction of  Record.  Under  this  subdivision,  it  was  held- in  Golden  Terra 
Mining  Co.  v.  Smith,  2  Dak.  374,  11  N.  W.  98,  that  a  motion  for  a  new  trial, 
upon  the  ground  of  the  destruction  of  the  record  and  evidence  before  the  de- 
cision, and  difficulty  of  restoring  the  evidence  and  making  a  case  or  bill  of 
exceptions,  was  properly  denied. 

SUBDIVISION  4.     Newly  Discovered  Evidence. 

What  Affidavit  Must  Show.  An  application  under  this  subdivision 
for  a  new  trial  must  show  by  affidavit  (1)  that  the  applicant  has  been  vigi- 
lant in  the  preparation  of  his  case  for  trial;  (2)  that  new  and  material  facts 
have  been  discovered  since  the  trial,  which  could  not  by  reasonable  dili- 
gence have  been  produced  at  the  trial;  and  these  facts  should  be  explicitly 
stated  in  the  affidavits.  Gaines  v.  White,  sheriff,  2  S.  D.  410,  47  N.  W.  524, 
(on  re-hearing)  50  N.  W.  901;  Moore  v.  Bank,  5  Serg.  &  R.  41.  Impeach- 
ing, or  CumtQative  Evidence.  Except  under  unusual  circumstances  a  new 
trial  will  not  be  granted  on  the  ground  of  newly-discovered  evidence  which 
goes  only  to  discredit  or  impeach  a  witness,  or  which  is  merely  cumulative. 
Schefferetal  v.  Corson  et  al,5S.  D.  233,  58  N.  W.  555;  16  Am.  &  Eng.  Ency. 
Law  p.  572  and  cases  cited;  Id.  575.  Discretionary.  Applications  for  a  new 
trial  on  this  ground  are  addressed  to  the  discretion  of  the  court,  and  its  action 
will  not  be  disturbed  except  for  abuse  of  discretion;  the  presumption  being 


EXCESSIVE   DAMAGES.  '  85 

that  it  was  not  properly  exercised.  Longley  v.  Daly,  1  S.  D.  257,  46  N.  W. 
247;  Baker  v.  Joseph,  16  Cal.  180;  Arnold  v.  Skag-gs,  35Cal.  684;  Grah.  &  W. 
on  New  Trials,  Vol.  1  p.  473.  Probable  Di£ferent  Result.  To  warrant  the 
gi'anting  of  a  new  trial  on  such  grounds  affidavits  must  show  such  new  facts 
as  will  probably  lead  to  a  different  result  on  a  new  trial,  which  must  be  es- 
tablished by  affidavits  of  persons  who  are  personally  familiar  with  them, 
unless  some  strong  reason  is  shown  why  this  requii'ement  should  be  dis- 
pensed with.  Braithwaite  v.  Aiken  et  al,  2  N.  D.  57,  49  N.  W.  419. 
Disfavor  and  Distrust.  Applications  for  new  trial  on  this  ground  are 
looked  upon  with  disfavor  and  distrust.  Affidavits  in  this  case  held 
insufficient.  Braithwaite  v.  Aiken  et  al,  2  N.  D.  57,  49  N,  W.  419;  Hayne 
New  Trial  &  App.,  sec.  91,  93,  87  and  cases  cited;  Spottiswood  v.  Weir, 
80  Cal.  448,  22  Pac.  289;  Grace  v.  McArthur,  76  Wis.  641,  45  N.  W.  518; 
People  V.  Sutton,  73  Cal.  243,  15  Pac.  86.  Decision  Seldom  Disturbed. 
The  decision  of  the  trial  judge  in  granting  a  new  trial  on  the  ground  of 
newly-discovered  evidence  will  seldom  be  disturbed  on  appeal.  Hatch  et  al 
V.  Northern  Pac.  R.  R.  Co.,  . . . .  N.  D.  ...  ,  63  N.  W.  207. 

SUBDIVISION  5.     Excessive  Damages. 

Consult  decisions  under  subdivision  6. 

Materially  Greater.  A  verdict  will  not  be  disturbed  because  excess- 
ive, when  it  does  not  appear  that  the  damages  awarded  were  materially 
greater  than  the  evidence  will  justify.  Larson  v.  City  of  Grand  Porks,  3 
Dak.  307,  19  N.  W.  414;  Treanor  v.  Donahoe,  9  Cush.  228;  Baker  v.  Briggs, 
8  Pick.  126;  Bass  v.  C.  &  N.  W.  R.  Co.,  39  Wis.  640.  Aggravation— Per- 
sonal Mortification.  The  circumstances  which  merely  tend  to  aggravate 
the  ordinary  damages  which  necessarily  result  from  an  alleged  wrong  as  the 
natural  consequences  of  the  acts  set  out  in  the  complaint  for  a  malicious 
prosecution  need  not  be  specially  pleaded,  and  when  evidence  of  injury  to 
feelings  has  been  admitted  without  objection,  an  instruction  upon  such  evi- 
dence, to  the  effect  that  a  person  who  has  been  charged  with  a  crime,  and 
prosecuted  maliciously  and  without  probable  cause,  may  recover  for  per- 
sonal mortification  or  injury  to  his  feelings,  is  not  eri'Oiieous.  Jackson  v. 
Bell,  5  S.  D.  257,  58  N.  W.  671;  3  Suth.  Dam.  .704,  705;  14  Am.  &  Eng.  Enc. 
Law  71;  Hamilton  v.  Smith,  39  Mich.  222;  M'f'g  Co.  v.  Fields  (Ind.  Sup.)  36 
N.  E.  529;  Lombard  v.  Lenox  (Mass.)  28  N.  E.  1125,  and  cases  there  cited;  (as 
to  the  pleading),  Daylies  Code  PI.  156;  Solis  v.  Manning,  37  How.  Pr.  13. 
Consequential.  Damages  which  are  not  the  direct  or  natural  result  of  a 
party's  default,  but  of  intervening  and  exceptional  causes,  are  consequential, 
and  are  only  recoverable  against  such  party  when  it  is  shown  that  he  knew 
or  ought  to  have  foreseen  that  such  causes  or  conditions  did  or  would  likely 
exist,  and  so  may  be  considered  to  have  contracted  with  reference  to  or  in 
contemplation  of  them.  Simpson  Brick-Press  Co.  v.  Marshall,  5  S.  D.  528,  59 
N.  W.  728;  1  Suth,  Dam.  p.  74,  and  cases  cited  in  notes.     On  Court's  Motion. 


86  ■  CODE  OF  CIVIL  PROCEDURE. 

A  verdict  of  the  jury,  to  which  neither  party  has  objected,  should  not  bo  va- 
cated by  the  court  on  its  own  motion,  unless  there  has  been  such  clear  disre- 
gard of  the  instructions  or  the  evidence  that  the  court  is  at  once  satisfied 
without  mature  reflection  or  the  aid  of  argument  that  such  verdict  is  the  re- 
sult of  passion  or  prejudice,  or  was  rendered  under  a  misapprehension  of  the 
instructions,  and  the  order  should  be  promptly  made  upon  the  coming  in  and 

entry  of  the  verdict.     Clement  v.  Barnes,   S.  D ,  61  N.  W.  1126-, 

Gould  V.  Elevator  Co.,  2  N.  D.  216,  50  N.  W.  970. 

SUBDIVISION  6.     Insufficiency  of  the  Evidence — Against  Law. 

Consult  decisions  under  subdivisions  5  and  7,  and  sec.  5048,  Comp.  Laws. 

7.     Insufficiency  of  Evidence. 

(a)    Generally. 

Any  Legal  Evidence.  Where  there  is  any  legal  evidence  which 
fairly  warrants  the  verdict  of  a  jury  such  verdict  will  not  be  set  aside. 
Franz  Falk  Brewing  Co.  v.  Mielenz  et  al,  5  Dak.  136,  37  N.  W.  728; 
Caulfield  v.  Bogle,  2  Dak.  464,  11  N.  W.  511;  Finney  v.  R.  R.  Co.,  3  Dak. 
270,  16  N.  W.  500;  Phftlip  Best  Brewing  Co.  v.  Pillsbury  &  H.  E.  Co.,  5  Dak. 
62,  37  N.  W.  763;  Kile  v,  Tubbs,  32  Cal.  332;  Lick  v.  Madden,  36  Cal.  213. 
Is  Discretionary — Stronger  Case  Required  When.  An  application  for  a 
new  trial  under  this  subdivision  is  addressed  to  the  sound  discretion  of  the 
trial  judge,  and  his  discretion  will  only  be  reviewed  in  case  of  manifest  abuse 
of  discretion;  and  a  stronger  case  must  be  made  to  justify  the  interposition 
of  an  appellate  court  when  a  new  trial  has  been  granted  than  when  it  has 
been  refused.  Alt  v.  Chicago  &  N.  W.  Ry.  Co.,  5  S.  D.  20,  57  N.  W.  1126; 
Pianoforte  Co.  v.  Mueller,  38  la.  554:  Elliott's  App.  Proc.  p.  518;  Grant 

V.  Grant,  . . . .  S.  D ,  60  N.  W.  743;  Hodges  v.  Bierlien,  4  S.  D.  258,  56 

'N.  W.  811;  16  Am.  &  Eng.  Ency.  of  Law,  p.  693,  and  cases  cited;  Elliott 
App.  Proc.  sec.  306,  and  cases  cited;  and  a  clearer  case  is  required  for  rever- 
sal of  an  order  granting  a  new  trial  than  to  reverse  an  order  overruling  such 
motion.  Grant  v.  Grant,  supra;  Halpin  v.  Nelson,  76  la.  427,  41  N.  W.  62; 
Hodges  V.  Bierlien,  supra;  Stewart  v.  Town  of  Dunlap  (la.),  16  N.  W.  112. 
Substantial  Evidence,  Where  there  is  substantial  evidence  to  support  the 
verdict  it  will  not  be  disturbed.  Huron  Printing  &  Bindery  Co.  v.  Kittle- 
son  et  al,  4  S.  D.  520,  57  N.  W.  233.  Siistained  by  Competent  Evidence. 
It  is  the  province  of  the  jury  to  weigh  the  testimony,  and  a  verdict  sustained 
by  competent  evidence  will  not  be  disturbed  on  appeal.  Vermillion  Artes- 
ian Well,  E.,  L.,  M.,  I.  &  I.  Co.  v.  City  of  Vermillion,  ....  S.  D ,  61  N. 

W.  802.  Contract — Non-Compliance.  In  an  action  to  recover  upon  a  con- 
tract to  furnish  materials  and  labor  for  plastering  a  house,  evidence  exam- 
ined, and  held  that  the  plastering  done  by  plaintiff  for  defendant  was  not  ac- 
cording to  the  contract,  and  of  no  benefit  to  defendant.  Nollman  et  al  v. 
Evanson,  . . . .  N.  D ,  65  N.  W.  686. 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.  87 

Finding's  Stand  When.  Findings  of  the  trial  court  on  disputed  ques- 
tions of  fact  are  always  presumptively  right,  and  though  not  as  controlling 
here  as  the  verdict  of  a  jury,  must  stand,  unless  the  evidence  clearly  pre- 
ponderates against  them,  which  is  not  the  case  here.  Peldman  v.  Trum- 
bower, S.  D ,  64  N.  W.  189.  Homestead — Foreclosure.  In  an  ac- 
tion to  foreclose  a  mortgage,  where  the  wife  of  the  principal  defendant  de- 
fends upon  the  ground  that  the  mortgaged  premises  constituted  the  home- 
stead, of  defendants,  held,  that  the  evidence  upon  the  trial  warranted  a  finding 
that  the  husband  never  resided  upon  the  property  mortgaged;  that  the  evi- 
dence doesnot  clearly  preponderate  against  such  finding.  Clark  v.  Evans  et  al 

S.  D ,  60N.  W.  862.  Indorsee  for  Value.  In  an  action  upon  anegotiable 

promissory  note,  held,  upon  the  evidence,  that  it  showed  without  conflict 
that  plaintiff  bank  was  an  indorsee  for  value.     First  Nat.  Bank  of  Pierre  v. 

Smith  et  al,  S.  D ,  65  N.  W.  437.     Contempt— Prohibitory  Law.     In  a 

habeas  corpus  proceeding,  based  upon  a  judgment  for  contempt  growing  out 
of  an  injunction  under  the  Prohibitory  Law,  held,  under  the  facts  stated, 
that  there  was  evidence  tending  to  support  the  ruling  of  the  trial  court  as 
to  the  commission  of  the  act  constituting  the  contempt.     State   v.  Marku- 

son, N.  D ,  64  N.  W.  934.    School  Bonds— Estoppel.     In  an  action 

on  interest  coupons  against  a  school  district  under  chap.  44,  sess.  Laws  1883  of 
Dak,  field,  that  production  of  files  and  records  of  the  county  board,  of  a  de- 
scription of  the  school  district  in  question,  is  sufficient,  under  the  circum- 
stances [existing,  in  absence  of  evidence  to  the  contrary,  to  sustain  the  pre- 
sumption that  the  countj'  superintendent  complied  with  sec.  10,  chap.  14, 
Laws  1879,  Dak.,  relating  to  division  of  county  into  school  districts,   etc. 

Coler  et  al  v.  Rhoda  School  Tp.,  . . . .  S.  D ,  63  N.  W.    158.     Held,  also, 

that  the  recitals  upon  the  school  district  bonds  in  question  were  sufficient  to 
estop  defendant  from  showing  a  want  of  compliance  as  to  conditions  prece- 
dent to  issuance  thereof,  the  action  being  by  a  bona  fide  holder.  Id.  Sur- 
vey— Unauthorized  Contract.  Where  the  controlling  question  is  one  of 
fact,  as,  the  true  location  of  a  boundary  line,  it  is  not  material  that  a 
resurvey,  locating  the  line  as  claimed  by  one  of  the  parties,  was  made  under 

an  unauthorized  contract.     Hanson  v.  Tp.  of  Red  Rock, S.  D 63  N.  W. 

156;  affirming  same  case  in  4  S.  D.  358,  57  N.  W.  11.  Board  and  Lodging — 
Agreement.  In  an  action  upon  an  implied  contract  for  furnishing  board 
and  lodging  at  a  hotel,  to  an  employee  of  defendant  at  his  special  instance 
and  request,  held,  on  the  facts  stated,  that  the  original  agreement  between 
defendant  and  a  former  proprietor  of  the  hotel  was  not  made  for  the  benefit 
of  plaintiff,  the  employee  having  formerly  boarded  with  the  former  proprie- 
tor under  such  agreement.     Dempsey  v,  Billinghurst,    S.  D ,  64  N. 

W.  1124. 

Advertisement  Foreclosiire — Recital  of  Ownership.  In  a  sheriff's 
deed  in  foreclosure  by  advertisement,  grantee  was  described  as  "Globe  In- 


88  CODE  OF  CIVIL  PROCEDURE. 

vestment  Company,  formerly  Dakota  Mortgage  Loan  Corporation;"  held, 
such  recital  was  no  evidence  that  Globe  Investment  Co.  had  succeeded  to 

rights  of  Dak.  Mort.  Loan  Corporation.     Hannah  v.  Chase, N.  D , 

61,  N.  W.  18;  Comp.  Laws  sees.  5160,  5428,  5437;  Costello  v.  Burke,  63  la. 
361,  19  N.  W.  247;  Hill  v.  Draper,  10  Barb.  454;  Smith  v.  Penny,  44  Cal. 
161;  Hardinburg  v.  Lakin,  47  N.  Y.  109;  McMurtry  v.  Keifner  36  Neb.  522,  54 
N.  W.  844.  Disbarment.  In  a  proceeding  for  disbarment  of  an  attorney 
at  law,  held,  upon  an  examination  of  the  facts,  that  the  evidence  is  insuffi- 
cient to  warrant  the  finding  of  any  fact  that  is  ground  for  disbarment.  In 
re  Eaton,  4  N.  D.  614,  62  N.  W.  597;  sec.   473  Comp.  Laws;  Weeks,  Att'ys,, 

175,  176  and  cases  cited  in  note;  People  v.  Harvey,  41  111.  277;  In  re  O 

(Wis.),  42  N.  W.  221.  Alimony — Change  of  Condition.  When  a  clear  pre- 
ponderance of  evidence  shows  a  material  change  in  condition  and  circum- 
stances of  parties  to  a  decree  of  divorce,  and  that  defendant  should  be  re- 
lieved from  a  decree  for  payment  of  money  for  support  and  maintenance  of 
minor  children,  it  is  error  to  refuse  to  set  aside  and  vacate.  Greenleaf  v. 
Greenleaf S.  D ,  61  N.  W.  42.  Sale— Terms  Of.  In  an  action  for  pur- 
chase price  of  a  straw  stacker,  the  question  being  whether  there  was  a  sale,  and 
also  as  to  the  the  terms  of  the  sale  if  one  was  made,  held,  upon  examination 
of  the  evidence,  that  the  verdict  for  defendants  was  not  justified  by  the  evi- 
dence. Reeves  &  Co.  v.  Corrigan  et  al,  3  N.  D.  415,  57  N.  W.  80.  Damages 
— Medical  Attendance.  A  married  woman  who  has  by  contract  incurred 
liability  for  medical  attendance  made  necessary  by  an  injury  for  which  an- 
other is  liable,  may  recover  as  part  of  her  damages  a  sum  equal  to  the 
amount  of  such  liability  the  same  as  a  feme  sole,  although  she  has  not  paid 
for  such  medical  attendance  at  the  time  of  trial.     Chacey  v.  City  of  Fargo, 

. . . .  N.  D 64  N.  W.  932;  Mort.    Co.    v.    Stevens,  3  N.  D.  265,  55  N.  W. 

578.  Findings  Sustained — Parol  Evidence.  Under  section  25,  chap.  120, 
Laws  1891  of  N.  D.,  this  court  will  not  try  the  case  de  novo;  the  findings  be- 
low are  presumed  to  be  correct,  and  a  finding  based  upon  parol  evidence  will 
not  be  disturbed  unless  the  error  clearly  appears.  Jasper  v.  Hazen,  4  N.  D. 
1  58  N.  W.  454;  Randall  v.  Burke  Tp.,  4  S.  D.  337,  57  N.  W.  4.  Taking  Pos- 
session— OflB.cer's  Return.  In  an  action  of  claim  and^delivery,  where  error 
was  assigned  involving  sufficiency  of  the  evidence  to  justify  the  verdict,  held, 
that  where  the  property  is  specifically  described  in  the  affidavit  and  the 
officer  takes  into  his  possession  such  identical  property,  his  return  in  con- 
nection with  certain  oral  testimony  was  sufficient  to  support  the  verdict 
upon  the  question  as  to  whether  the  officer  took  possession  of  such  property, 
though  the  officer  testified  in  contradiction  of  his  return.     Feury  v.  McCor- 

mick  H.  M.  Co S.  D  . . . .,  61  N.  W.  162. 

Clear  Preponderance — Presumption.  The  last  clause  of  sec.  5237, 
Comp.  Laws,  requires  this  court,  in  a  cause  tried  by  a  court  or  referee,  to 
review  the  questions  of  fact,  as  well  as  law;  and  on  such  review  this  court 


INSUFFICIENCY  OF  THE  EVIDENCE— AGAINST  LAW.  89 

will  presume  that  the  decision  below  upon  the  weight  of  evidence  is  correct; 
only  when  this  court  is  satisfied  that  there  is  a  clear  preponderance  of  evi- 
dence against  such  decision,  will  that  presumption  be  overcome  and  the  de- 
cision reversed;  in  this  case  the  court  finds  a  clear  preponderance  of  evidence 
against  the  findings  below.  Randall  et  al  v.  Burke  Tp.  et  al,  4  S.  D.  337,  57 
N.  W.  4;  Snyder  v.  Wright,  13  Wis.  689;  Fisher  v.  Trust  Co.,  21  Wis.  73. 
Prima  Facie  Case.  Where  the  defendant  moved  for  judgment  at  the  close 
of  plaintiff's  evidence,  consisting  of  a  school  order,  which  motion  was  de- 
nied, held,  no  error;  the  order  made  a  prima  facie  case  and  was  sufficient  un- 
til rebutted.  Meyer  v.  School  Dist.  No.  31  Minnehaha  Co.,  4S.  D.  420,  57  N. 
W.  68;  Edinburgh  American  L.  &  M.  Co.  v.  City  of  Mitchell,  1  S.  D.  593,  48 
N.  W.  131.  Claim  and  Delivery.  Where  the  evidence  fully  sustains  alle- 
gations of  ownership,  right  to  immediate  possession,  and  wrongful  deten- 
tion of  the  property,  a  verdict  for  plaintiff  upon  all  issues,  and  that  plaintiff 
i.«»  entitled  to  immediate  possession  of  the  property,  the  value  being  speci- 
fied, is  sufficient,  no  objection  being  made  when  returned,  to  support  a  judg- 
ment for  plaintiff.  Hormann  v.  Sherin S.  D ,  60  N.  W.  145;  Ar- 
thur V.  Wallace,  8  Kan.  267.  Ingle  v.  Mudd,  86  Mo.  217;  Smith  v.  Dodge.  37 
Mich.  354;  Coit  v.  Waples,  1  Minn.  134  (Gil.  110);  Anderson  v.  O'Laughlin, 
1  Mont.  81;  Williams  v.  Porter,  41  Wis.  422.  Indemnity — Must  Show  In- 
jviry.  In  an  action  on  conti'act  to  indemnify  plaintiff  against  damages  by 
reason  of  certain  mechanic's  liens  existing  upon  a  building  sold  by  defend- 
ant to  plaintiff,  he  cannot  recover  without  showing  that  he  was  injured  or 
became  liable  to  another  for  damages  occurring  to  such  building  after  he 
sold  the  same  and  after  foreclosure  of  the  lien;  evidence  before  referee  ex- 
amined and  findings;  held,  unsupported  by  the  evidence  and  judgment  re- 
versed.    Cranmer  v.  Building  &  Loan  Ass'n  of  Dak.,  . . . .  S.  D ,  61  N. 

W.  35.  Attachment  Affidavit.  The  facts  set  out  in  the  affidavit  for  an  at- 
tachment in  this  case  being  practically  unsupported,  and  specifically  denied 
by  the  attaching  debtors,  the  proof  before  the  court  was  sufficient  to  justify 

an  order  vacating  the  attachment.      Perie  et  al  v.  Berg  et  al, S.  D , 

64  N.  W.  1130. 

Conversion — Bill  of  Lading — Draft.  In  an  action  for  the  value  of  cat- 
tle alleged  to  have  been  converted  by  defendant,  where  the  shipper  drew  a 
draft  against  the  cattle  on  a  firm  to  whom  defendant  delivered  the  cattle,  the 
draft  being  attached  to  a  bill  of  lading  and  payable  to  another  firm  by  whom 
it  was  discounted  and  the  proceeds  paid  to  the  shipper,  and  which  draft  was 
not  paid,  whereupon  the  shipper  turned  over  to  said  drawees  two  car  loads 
of  sheep  as  security,  but  from  which  such  drawees  failed  to  realize  any  pro- 
ceeds, defendant  having  delivered  the  cattle  without  the  bill  of  lading,  with- 
out payment  of  the  draft  and  without  consent  of  the  drawees  of  the  draft; 
the  sheep  being  subsequently  turned  over  by  said  drawees  to  the  shipper, 
who  delivered  them  to  another  with  directions  to  keep  them  for  the  payees 


90  CODE  OF  CIVIL  PROCEDURE. 

in  the  draft,  who  claimed  them  as  security  for  the  amount  of  the  draft,  but 
which  transaction  as  to  the  sheep  was  not  known  to  the  defendant;  lield,  the 
trial  court  properly  refused  to  make  a  finding'  that  the  payees  in  the  draft 
ratified  the  taking  of  the  sheep  as  their  property  by  the  shipper,  there  being 
confiicting  evidence  upon  that  point;  that  the  findings  made  were  justified  by 
the  evidence,  and  that  the  payees  in  said  draft  or  their  assignee  could  re- 
cover of  defendant  the  amount  of  the  draft,  to  the  extent  of  the  value  of  the 

cattle.     State  v.  Chi.,  Mil.   &  St.  P.  Ry.  Co S.  D ,  65  N.  W.  29. 

meg's!  Contract.  For  a  case  in  which  the  judgment  of  the  court  below, 
upon  findings  that  the  contract  in  suit  was  illegal  and  not  binding  on  defend- 
ant corporation,  was  sustained;  see  Tolman  v.  New  Mexico  &  Dak.  Mica  Co., 
4  Dak.  4,  22  N.  W.  505.  auestion  of  Fact— County  Seat.  Whether  the 
place  generally  known  as  "Hot  Springs"  or  the  territory  platted  as  "Hot 
Springs"  was  selected  by  the  electors  as  the  county  seat  is  a  question  of  fact 
depending  upon  the  understanding  and  intention  of  the  voters;  and  where 
the  finding  of  the  trial  court  upon  such  question  is  well  supported  by  the 
evidence,  such  finding  will  be  accepted  as  correct  by  this  court.  Fall  River 
Co.  V.  Powell,  5  S.  D.  49,  58  N.  W.  7.  Professional  Emplojrment— Pre- 
sumption. In  the  absence  of  facts  or  circumstances  to  the  contrary,  it  will 
be  presumed  that  an  attorney  at  law,  acting  as  such  within  the  scope  of  his 
professional  duty,  has  been  employed  and  retained  by  the  person  whom  he 
represents;  and  same  presumption  applies  as  to  an  appointive  or  elective  offi- 
cer, and  as  to  a  proper  performance  of  his  official  duties.  Noyes  et  al  v. 
Belding,  sheriff,  et  al  5  S.  D.  603,  69  N.  W.  1069;  Shain  v.  Forbes,  82  Cal. 
677,  23  Pac.  198;  1  Rice  on  Ev.  103.  Partners— Dissolution— Firm  Debts. 
Where  co-partners  enter  into  a  contract  of  dissolution  and  therein  make  de- 
tailed arrangements  and  for  division  of  property  and  payment  of  firm  debts, 
held,  in  the  absence  of  proof  to  the  contrary,  such  differences  will  be  pre- 
sumed to  have  been  merged  in  the  contract;  and  such  contract  will  not  be 
set  aside  on  the  sole  ground  that  one  of  the  parties  did  not  read  it  or  know 
its  contents  before  signing;  referee's  report  examined  and  his  findings  held 
to  be  supported  by  the  testimony.  Little  v.  Little,  2  N.  D.  175,  49  N.  W.  736. 
Instruction  of  court  that  there  was  no  evidence  contradicting  testimony  of 
defendant  as  to  a  certain  fact  held  proper.  Moe  v.  Job,  1  N.  D. 
140,  45  N.  W.  700.  Agency.  Evidence  examined  in  this  case,  and  found 
not  to  show  that  the  defendant's  agent  had  authority  to  make  cer- 
tain declarations  and  admissions  admitted  in  evidence.  Short  v.  North- 
ern Pac.  Elevator  Co.,  1  N.  D.  159,  45  N.  W.  706.  Contempt.  In  a  proceed- 
ing for  contempt  of  court,  evidence  examined,  and  held,  insufficient  to  sus- 
tain a  judgment  of  conviction.     Burdick  v.  Marshall, S.  D ,  66  N. 

W.  462;  In  re  Spaulding  et  al,  Id.  4  Ency.  of  PI.  &  Prac,  p.  768  and  note. 
liimitations — Rebuttal.  In  an  action  on  a  promissory  note,  the  plea  of  the 
statute  of  limitations  being  set  up,  the  burden  of  proving  facts  showing  the 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.  91 

note  is  in  fact  barred  devolves  upon  the  party  claiming'  under  the  note;  and 
in  such  case,  if  such  party  fails  to  rebut  the  prima  facie  case  which  the  in- 
troduction of  the  note  in  evidence  makes  for  the  party  pleading  the  statute, 
the  court  is  justified  in  findintr  that  the  note  is  barred.    Dielman  v.  Citizen's 

Nat.  Bank  of  Madison, S.  D ,  66  N.  W.  311;  but  it  cannot  be  held  to 

be  barred,  until  the  opposing  party  has  had  an  opportunity  to  rebut  such 
prima  facie  case  made  by  the  note  itself.  Id;  Meyer  v.  School  Dist.,  4  S.  D. 
420,  57  N.  W.  68. 

Freight  Regfulation — "Circiilar."  A  regulation  promulgated  and  ob- 
served by  a  freight  association  composed  of  numerous  railway  companies,  by 
which  the  capacity  of  tank  cars  owned  by  shippers,  and  not  listed  in  what  is 
denominated  a  "Joint  Tank  Line  Circular,"  showing  the  actual  weight, 
shall  be  estimated  at  40,000  pounds,  will  not  be  declared  unreasonable  in  ab- 
sence of  a  reliable  basis  for  computation,  or  anything  to  show  the  gross 
amount  of  freight  charged  and  collected  thereunder  was  excessive.  Coates 
v.  Chi.  Mil.  &  St.  P.  Ry.  Co., . . . .  S.  D . . . . ,  65  N.  W.  1067.  Bill  of  Exchange 
— Condition.  In  an  action  upon  a  bill  of  exchange,  given  in  the  course  of  a 
transaction  of  exchange  of  realty,  evidence  examined,  and  held  sufficient  to 
justify  a  verdict  in  favor  of  defendant  who  claimed  to  have  given  the  bill  of 
exchange  conditionally  to  be  paid  upon  receipt  of  certain  goods.      Farmers' 

Bank  of  Frankfort  v.  Bank  of  Canton,  . . . .  S.  D ,  65  N.  W.  1070.     Deed 

as  Mortgage — Clear  Proof,  ^o  sustain  a  finding  that  a  deed  absolute  on  its 
face  was  intended  as  a  mortgage,  the  evidence  must  be  clear,  convincing  and 
satisfactory,  and  of  such  character  as  to  leave  in  the  mind  no  hesitation  or 
substantial  doubt;  in  this  case,  field,  the  evidence  was  sufficient  to  sustain 
the  trial  court  in  holding  that  the  deed  in  question  was  given  as  security. 
Jasper  v.  Hazen,  4  N.  D.  1,  58 N.  W.  454;  Eames  v.  Hardin,  111  111.  634;  Gas- 
sert  V.  Bogk  (Mont.),  19  Pac.  281,  affirmed  in  149  U.  S.  17,  13  Sup.  Ct.  Rep. 
738;  Locke  v.  Moulton,  96  Cal.  21,  30  Pac.  957;  Ensminger  v.  Ensminger,  75 
la.  89,  39  N.  W.  208;  Howland  v.  Blake,  97  U.  S.  624;  Kent  v.  Lasley,  24  Wis. 
654;  Coyle  v.  Davis,  116  U.  S.  108,  6  Sup.  Ct.  Rep.  314;  Cadman  v.  Peter,  118 
U.  S.  73,  6  Sup.  Ct.  Rep.  957;  Nevius  v.  Dunlap,  33  N.  Y.  676;  Devereaux  v. 
Sun  Fire  Office,  51  Hun,  147,  4  N.  Y.  Supp.  655;  Case  v.  Peters,  20  Mich.  298; 
Vary  v.  Shea,  36  Mich.  388;  Tilden  v.  Streeter,  45  Mich.  533,  8  N.  W.  502; 
Reynolds  v.  Campbell,  45  Mich.  529,  8  N.  W.  581;  McMillan  v.  Bissel,  63 
Mich.  66,  29  N.  W.  737;  Low  v.  Graff,  80  111.  360;  Bartling  v.  Brasuhm,  102 
111.  441;  Newton  v.  Holley,  6  Wis.  592;  Lake  v.  Meacham,  13  Wis,  396;  Ker- 
cheval  v.  Doty,  31  Wis.  477;  Harter  v.  Christoph,  32  Wis.  246;  Lavassar 
V.  Washburn,  50  Wis.  200,  6  N.  W.  516;  Meiswinkel  v.  Ins.  Co.,  75  Wis.  147, 
43  N.  W.  669;  Pancake  v.  Cauffman,  114  Pa.  St.  113,  7  Atl.  67;  McCall  v. 
Bashnell,  41  Minn.  37,  42  N.  W.  545;  Bingham  v.  Thompson,  4  Nev.  224. 
Commissions— Gambling  Contract.  Action  for  commissions  and  advances 
made  by  plaintiffs,  on  account  of  sale  and  purchase  of  wheat  as  agents  for 


92  CODE  OF  CIVIL  PROCEDURE. 

defendant;  evidence  examined,  and  held  to  support  finding  that  plaintiffs 
knew  defendant's  purpose  was  to  gamble  in  wheat,  and  that  they  acted  as  his 
agents  in  furtherance  of  such  purpose.  Dows  et  al  v.  Glaspel,  4  N.  D.  251,  60 
N.  W.  60;  Whitesides  v.  Hunt,  97  Ind.  191;  Melchert  v.  Tel.  Co.,  11  Fed.  193; 
Edwards  v.  Hoeffinghoff,  38  Fed.  639;  Embrey  v.  Jemison,  131  U.  S.  336  (344), 
9  Sup.  Ct,  Rep.  776;  Irwin  v.  Williar,  110  U.  S.  499,  4  Sup.  Ct.  Rep.  160; 
Mohr  V.  Miesen  (Minn.),  49  N.  W.  862;  and  when  evidence  competent  to  es- 
tablish a  fact  is  admitted,  this  court  will  not  assume  that  the  trial  court  con- 
sidered the  evidence  in  finding  another  fact  not  legally  provable,  when  the 
latter  is  fully  supported  by  other  evidence.  Dows  et  al  v.  Glaspel,  supra. 
Lease — Purchase  Money  Lien.  In  an  action  for  claim  and  delivery  to  re- 
cover hotel  furniture,  under  an  alleged  contract  of  sale,  and  where  defend- 
ant claims  possession  thereof  under  a  lease  from  plaintiff's  vendors  of  the 
furniture  and  the  hotel  in  which  the  same  is  situated,  which  lease  contained 
a  provision  for  purchase  of  the  furniture  by  lessees,  and  containing  a  pro- 
vision that  the  property  shall  be  held  by  the  lessor  as  a  pledge  and  lien  for 
performance  of  the  agreement,  held,  upon  an  examination  of  the  evidence, 
that  the  lessor  has  a  lien  upon  the  furniture  for  installments  to  be  paid  as 
purchase  price  thereof  by  the  lessees,  and  also  for  rent  accruing  under  the 
lease,  as  against  lessees  and  persons  claiming  under  them  with  notice  of  the 
lien,  and  that  plaintiff  is  not  entitled  to  recover;  and  the  trial  court  rightly 
granted  a  new  trial  on  defendant's  motion.     l5sshon  v.  Watertown  Hotel  Co., 

. . . .  S.  D 63  N.  W.  239;  Whiting  v.  Eichelberg,  16  la.  422;  Langdon  v. 

Buel,  9  Wend.  80;  Wright  v.  Butcher,  72  Mo.  179;  Jones  Chat.  Mort.  13-15; 
2  Story's  Eq.  Jur.  1231;  Legard  v.  Hodges,  1  Ves.  Jr.  478.  Dodsley  v.  Var- 
ley,  12  Adol.  &  E.  632.  Statute  of  Frauds— Ownership.  When  plaintiff 
alleges  ownership  of  real  property  in  his  complaint,  which  allegation  is  de- 
nied, evidence  of  a  witness  (without  objection  to  its  competency)  that  plaint- 
iff was  ''the  owner,  to  his  knowledge,"  and  this  is  undisputed,  is  sufficient  to 
support  a  finding  of  ownership  in  plaintiff;  the  memorandum  agreement 
signed  by  plaintiff's  agent,  together  with  abstract  of  title,  and  a  check  in 
part  payment  given  by  defendant  and  deposited  in  escrow,  together  with 
notes  and  mortgage  drawn  pursuant  to  contract  and  forwarded  to  defendant, 
and  various  correspondence  pertaining  to  the  transaction  of  sale,  held,  to  be 
sufficient  evidence  of  a  note  or  memorandum  in  writing  within  subdivision  5 

of  sec.  3544  Comp.  Laws.     Townsend  v.  Kennedy, S.  D ,  60  N.  W. 

164;  Wendt  v.  R.  R.  Co.,  4  S.  D.  476,  57  N.  W.  226;  Fry  Spec.  Perf,  sees.  449, 
450;  Clasen  v.  Bailey,  14  John.  484;  McCrea  v.  Purmort,  16  Wend.  460;  Da- 
vis V.  Shields,  26  Wend.  362;  Williamsv.  Bacon,  2Gray  (Mass.),  387;  Greenl. 
on  Ev.  sec.  268;  Wharton  on  Ev.  sec.  872;  Reed,  Stat,  of  Fr.,  sec.  341;  Fry 
Spec.  Perf.  sec.  609,  subd.  4  and  sec.  20;  Roehl  v.  Haumesser  (Ind.),  15  N.  E. 
345;  Peck  v.  Vandermark.  99  N.  Y.  29,  1  N.  E.  41;  Thayer  v.  Luce,  22  Ohio 
St.  62;  Christensen  v.  Wooley,  41  Mo.  App.  53;  Hewes  v.  Taylor,  70  Pa.  St. 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.  93 

387;  Jelks  v.  Barrett,  52  Miss.  315;  Peabody  v.  Shyers,  56  N.  Y.  230;  Schutt 
V.  Society,  41  N.  J.  Eq.  115,  3  Atl.  398;  Wills  v.  Ross,  77  Ind.  1;  Trevor  v. 
Wood,  36  N.  Y.  307;  Work  v.  Kowhick,  81  111.  317.  Shipment— Connect- 
ing- liines—Ag-ency.  It  being  out  of  the  usual  course  of  business,  the  pre- 
sumption is  that  a  local  station  agent  has  no  power  to  bind  his  company  by 
a  contract  to  ship  property  over  connecting  lines  of  railwaj',  and  such  auth- 
ority will  not  be  inferred  from  the  mere  fact  that  freight  for  the  entire  dis- 
tance was  collected  by  such  agent.     Coates  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co., 

....  S.  D ,  65  N.  W.  1067;  Page  v.  Ry.  Co.,  ....  S.  D 64  N.  W.  137; 

1  Wood,  R.  R.  (2nd  Ed.),  508.  Doubtful  auestion— Title.  Where  the  title 
to  property  in  dispute  is  in  doubt,  in  a  case  where  an  appeal  from  an  order 
granting  or  continuing  a  temporary  injunction  is  taken,  the  facts  not  being 
discussed  by  counsel  on  such  preliminary  appeal,  this  court  will  treat  the 
question  of  title  as  a  doubtful  one,  and  decide  only  whether  the  injunction 
was  rightly  granted.  Huron  Waterworks  Co.  v.  City  of  Huron,  4  S.  D.  102, 
65  N.  W.  759. 

(6).     Conflicting  Euidence. 

"Will  Not  Weigh.  Where  in  a  jury  trial  the  evidence  is  conflicting, 
this  court  will  not  weigh  the  evidence,  or  go  further  than  to  determine 
therefrom  whether  or  not  the  party  has  given  sufficient  legal  evidence  to 
sustain  his  verdict  without  regard  to  the  evidence  given  on  the  part  of  the 
other  party,  except  so  far  as  such  evidence  tends  to  sustain  his  case.  Jeansch 
V.  Lewis  et  al,  1  S.  D.  609,  48  N.  W.  128.  Bedow  v.  Tonkin,  5  S.  D.  432,  59 
N.  W.  222,  The  evidence  being  voluminous  and  conflicting,  and  appearing 
to  support  the  findings  of  the  court  below,  judgment  will  not  be  reversed. 
Caledonia  Gold  Min.  Co.  v.  Noonan  et  al,  3  Dak.  189, 14  N.  W.  426.  Whether 
a  verdict  will  be  disturbed  upon  an  exception  that  it  is  not  sustained  by  the 
evidence,  or  is  contrary  to  evidence,  where  there  is  any  evidence  to  support 
it,  quaere.  Territory  v.  Stone,  2  Dak.  155,  4  N.  W.  697.  Verdict  Conclus- 
ive. So  far  as  the  evidence  upon  any  question  of  fact  is  substantially  con- 
flicting, the  verdict  of  the  jury,  if  such  question  were  submitted  on  proper 
instructions,  is  conclusive  upon  this  court.  Gleckler  et  al  v.  Slavens  et  al,  5 
S.  D.  364,  59  N.  W.  323.  Where  clearly  conflicting  evidence  on  a  material 
issue  has  been  submitted  to  a  jury  under  proper  instructions,  its  verdict  in 
favor  of  either  party  upon  the  issues  is,  for  purposes  of  appeal,  conclusive  as 

to  such  questions.     Tootle  et  al  v.  Petrie,  sheriff, S.  D.     . . .,  65  N.  W. 

43.  Great  Injustice — Want  of  Evidence.  The  verdict  of  a  jury  or  find- 
ings of  a  court  upon  a  question  of  fact  should  not  be  disturbed,  the  evidence 
being  conflicting,  unless  great  injustice  seems  to  have  been  done,  or  there  is 
an  entire  want  of  evidence  to  sustain  it;  but  where,  conceding  to  all  the  evi- 
dence ofi'ered  the  greatest  probative  force  which,  according  to  the  law  of 
evidence,  it  is  fairly  entitled  to,  it  is  not  sufficient  to  justifj'  a  verdict,  it  is 
the  duty  of  the  court  after  the  verdict  to  set  it  aside  and  grant  a  new  trial. 


94  CODE  OF  CIVIL  PROCEDURE 

Finney  v.  Northern  Pac.  Ry.  Co.,  3  Dak.  270,  16  N.  W.  500;  Moline  Plow  Co. 
V.  Gilbert,  3  Dak.  239,  16  N.  W.  1;  Orleans  v.  Piatt,  99  U.  S.  677;  Pence  v. 
Langdon,  Id.  578;  ComVs  v.  Clark,  94  U.  S.  278,  284;  Hendrick  v.  Lindsay, 
93  U.  S.  143;  Pleasance  v.  Pant,  22  Wall,  116. 

Substantial  Conflict— Rule  of  Reversal.  The  conflict  in  evidence 
which  prohihits  a  court  from  interfering  with  a  verdict  of  a  jury  on  a  ques- 
tion of  'act  should  be  a  substantial,  not  an  illusory  conflict.  Fuller  v.  North- 
ern Pac.  R.  R.  Co.,  2  N.  D.  220,  50  N.  W.  359;  and  whenever  an  appellate 
court  couscientiously  and  irresistably  reaches  the  conclusion  that  a  verdict 
is  against  the  truth  and  the  undoubted  weight  of  the  evidence,  and  could 
only  have  been  reached  by  failure  of  the  jury  to  exercise  unbiased  and  un- 
prejudiced judgment,  such  court  should  unhesitatingly  reverse  the  order  of 
the  trial  court  refusing  to  vacate  such  verdict.  Id.  Reynolds  v,  Lambert, 
69  111.  495;  Mfg.  Co.  v.  Reeves,  68  111.  403;  Blake  v.  McMuUen,  91  111.  32; 
Branson  v.  Caruthers,  49  Cal.  374;  Helfrich  v.  R.  R.  Co,  (Utah),  26  Pac.  295; 
Lester  v.  Sallick,  31  la.  477;  McKay  v.  Thorington,  15  la.  25;  Carlin  v.  R. 
R.  Co.,  37  la.  316;  Reid  v.  Colby  (Neb.),  42  N.  W.  485.  Preponderance  of 
Evidence.  In  an  action  to  foreclose  mortgages  and  for  personal  judgment 
for  deficiency  against  subsequent  grantees  of  the  mortgaged  realty  who 
were  charged  to  have  assumed  payment  of  the  mortgage,  evidence  exam- 
ined, and  it  is  held,  evidence  being  conflicting,  that  this  court  cannot  say 
that  the  finding  of  the  trial  court  was  against  the  clear  preponderance  of 
the  evidence.  Moore  v.  Booker  et  al,  4  N.  D.  543,  62  N.  W  607.  Statute  of 
Frauds — Conveyance.  In  a  similar  action,  where  the  findings  are  attacked 
as  being  against  the  weight  of  evidence,  held,  that  a  grantee  in  a  deed  of 
property  subject  to  a  prior  mortgage  is  not  personally  liable  for  the  mort- 
gage debt  in  absence  of  an  agreement  on  his  part  to  assume  payment  of  the 

mortgage.    Granger  v.  Roll  et  al, S.  D ,  62  N.  W.  970;  nor  will  the 

fact  that  the  amount  of  the  mortgage  was  retained    by    grantee  out  of 
purchase  price,  render  him  liable,  in  absence  of  such  agreement.  Id.    Jones 
Mort.  (5th  Ed.),  sec.  748  and  cases  there  cited;  Belmont  v.  Colman,  22  N.  Y. 
438;  Shepard  v.  May,  115  U.  S.  505,  6  Sup.  Ct.  119;  Society  v.  Bostwick,  100 
N.  Y.  628,  3  N.  E.  296;  nor  will  the  fact  that  the  full  value  of  the  property  is 
expressed  in  the  deed  as  consideration  of  the  purchase;  Granger  v.  Roll  et 
al,  supra;  Elliott  v.  Sackett,  108  U.  S.  132,  2  Sup.  Ct.  375;  Fisk  v.  Tallman, 
124  Mass.  254;  Fowler  v.  Fay,  62  111.  375;  Hubbard  v.  Ensign,  46  Conn.  576 
Johnson  v.  Monell,  13  la.  300;  Gage  v.  Jenkinson,  58  Mich.  169,  24  N.  N.  815 
Mason  v.  Barnard,  36  Mo.  384;  Schley  v.  Fryer,  100  N.  Y.  71,  2  N.  E.  280 
Johnson  v.   Zink,  51  N.  Y.  333. 

Charge — Presiunption  of  Disregard  of.  Where  there  is  a  substantial 
conflict  in  the  testimony  the  jury  are  the  sole  judges  of  the  weight  of  evi- 
dence; and  this  court  cannot  say  that  a  charge  that  certain  propositions 
must  be  established  by  a  clear  preponderance  of  evidence,  was  disregarded 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.  95 

by  the  jury,  simply  because  we  might  think  the  preponderance  of  testimony 
does  not  favor  such  proposition.  Halley  v.  Folson,  1  N.  D.  325,  48  N.  W. 
219.  One  Witness  Sustaining  Verdict.  The  claim  that  a  verdict  is  with- 
out support  in  the  evidence  cannot  be  maintained  when  the  explicit  and 
consistent  testimony  of  one  witness  sustains  it,  even  though  a  number  of 
witnesses  as  explicitly  testiiied  to  the  contrary.  Taylor  v.  Jones,  3  N.  D. 
235,  55  N.  W.  593.  Value  of  Use  of  Land.  In  an  action  involving  the  val- 
ue of  the  use  of  land,  field,  that  under  the  evidence  the  verdict  as  to 
the  value  of  the  use  is  justified.  Heger  et  al  v.  DeGroat,  3jN.  D.  354,  66, 
N.  W.  150.  Conflicting  Evidence— Deposit.  In  an  action  to  recover  funds 
deposited  with  defendant  bank  by  and  to  the  credit  of  plaintilT,  evidence  exam- 
ined, and  certain  findings  of  fact  upon  conflicting  evidence,  concerning  the 
transaction,  involving  a  levy  upon  defendant  bank  under  a  judgment,  and  a 
deposit  in  said  bank  by  the  officer  making  the  levy,  of  the  money  derived 
fi'om  such  levf^  and  payment  thereafter  by  the  bank  of  a  check  for  part  of 
said  money,  the  officer  having  endorsed  his  certificate  of  deposit  of  the 
amount  so  levied,  to  plaintiff,  are  held,  to  be  supported  by  the  evidence. 
Martin  v.  Minnekahta  State  Bank,  ....  S.  D ,  64  N.  W.  127;  McLaugh- 
lin V.  Bank,  6  Dak.  406,  43  N.  W.  715:  Farmer  v.  Rogers,  10  Cal.  335;  Bank 
V.  Mason,  95  Pa.  St.  113;  Bank  v.  Alexander  (Pa.iSup.),  14  Atl.  402;  Bank 
V.  Burkhardt,  100  U.  S.  689.  Substantial  Conflict.  Where  evidence  be- 
fore a  jury  is  substantially  conflicting  this  court  will  not  substitute  its  own 

judgment  for  that  of  the  jury.     Johnson  v.  Gilmore, S.  D ,  60  N.  W. 

1070. 

(c)    Negligence — Damages. 

See  "Directing  Verdict."  See  also  same  headings  under  Subdivision  7, 
infra. 

Proximate  Cause.  Action  for  damages  caused  by  fire  escaping  from 
defendant's  train;  Held,  that  whether  the  fire  was  the  proximate  cause  of 
the  injury,  or  whether  such  injury  was  the  result  of  another  and  independ- 
ent cause,  were,  under  the  evidence,  questions  for  the  jury,  and  it  was  not 
error  to  submit  them  to  the  jury  with  proper  directions  as  to  the  law.  Gram 
V.  Northern  Pac.  R.  R.  Co.,  1  N.  D.  252,  46  N.  W.  972;  Clemens  v.  R.  R.  Co., 
53  Mo.  366;  Kellogg  v.  R.  R.  Co.,  26  Wis.  223;  Higgins  v.  Dewey,  107  Mass. 
494.  Where  undisputed  evidence  shows  that  the  fire  consuming  plaintiff's 
property  started  on  defendant's  right  of  way,  immediately  after  a  train 
passed,  no  other  visible  cause  for  the  fire  appearing,  held,  the  evidence  was 
sufficient  to  justify  the  jury  in  finding  that  defendants'  train  threw  out  and 
started  the  fire.  Gram  v.  N.  Pac.  R.  R.  Co.,  supra;  Karsen  v.  R.  R.  Co.,  29 
Minn.  12,  11  N.  W.  122,  and  cases  there  cited.  Firebreak.  If  plaintiff  had 
not  established  a  firebreak,  such  omission  would  not  constitute  negligence 
per  se,  but  whether  negligence  was  shown  by  such  omission  is  a  question 
for  the  jury  under  instructions.     Gram  v.  N,  Pac.  R,  R.  Co,,  supra;  Erd  v. 


96  CODE  OF  CIVIL  PROCEDURE. 

R.  R.  Co.,  41  Wis.  65.  Combuatible  Materials.  An  instruction  that  if  the 
evidence  shows  that  combustible  materials  were  permitted  by  defendant  too 
grow  upon  its  right  of  way,  and  that  engines  upon  the  road  were  furnished 
with  best  known  appliances  to  prevent  escape  of  fire  and  wore  in  good  order, 
and  that  the  fire  was  accidentally  and  not  negligently  communicated  to 
these  materials  and  from  there  to  plaintiff's  property,  defendant  is  not  lia- 
ble, was  properly  refused;  due  care  in  one  direction  does  not  excuse  negli- 
gence in  another.  Gram  v.  N.  P.  R.  R.  Co.,  supra.  Proximate  Cause — 
Sidewalk — Constructive  Notice.  In  an  action  for  injury  by  stepping  into  a 
hole  in  a  sidewalk  made  by  displacement  of  a  loose  plank  thrown  out  of  po- 
sition by  a  passing  bicycle,  held,  that  the  defendant  city,  being  liable  for  the 
defective  condition  of  the  walk,  was  liable  to  plaintiff  for  damages:  First, 
because  the  loose  plank  was  one  of  the  proximate  causes  of  the  injury; 
second,  that  when  two  causes  combine  to  produce  an  injury,  both  of  which 
are  in  their  nature  proximate,  one  being  a  culpable  defect  in»the  highway 
and  the  other  some  occurrence  for  which  neither  party  is  responsible,  the 
city  is  liable  if  the  injury  would  not  have  been  sustained  but  for  the  defect 

for  which  the  city  is  responsible.     Chacey  v.   City  of  Fargo, N.  D , 

64  N.  W.  932;  and  when  the  defect  is  a  loose  sidewalk  plank,  it  is  competent 
to  prove  that  tTie  walk  had  been  in  a  dilapidated  condition  for  a  long  time, 
on  the  question  whether  the  particular  defect  which  caused  the  injury  had 
existed  for  a  sufficient  time  to  give  the  city  constructive  notice  thereof;  and 
such  evidence  is  sufficient  for  that  purpose.  Chacey  v.  City  of  Fargo,  supra. 
Drawbar.  Plaintiff  sued  defendant  R.  R.  Co.  for  damages  fpr  injury  to  him 
while  coupling  an  engine  to  a  car,  the  drawbars  of  the  engine  and  of  the 
car  being  unusually  short  and  leaving  a  space  of  only  about  ten  inches; 
Held,  the  evidence  was  sufficient  to  justify  a  verdict  that  defendant's  negli- 
gence was  one  of  the  proximate  causes  of  the  injury.  Bennett  v.  N.  Pac.  R. 
R.  Co.,  2  N.  D.  112,  49  N.  W.  408;  R.  R.  Co.  v.  Frederick,  71  111.  294;  Green- 
leaf  v.  R.  R.  Co.,  29  la.  14;  Belair  v.  R.  R.  Co.  43  la.  662;  Curtchfield  v.  R. 
R.  Co.,  78  N.  C.  300;  R.  R.  Co.  v.  Calibreath  (Tex.),  1  S.  W.  622.  Remote 
Cause.  In  an  action  against  a  railroad  company  for  killing  tresspassing 
cattle,  held,  under  the  evidence  in  this  case,  that  the  case  was  properly  sub- 
mitted to  the  jury,  since,  though  plaintiff  may  have  been  negligent  in  allow- 
ing the  cattle  to  stray  upon  defendant's  track,  such  negligence  may  have 
been  only  the  remote  cause  of  the  action,  and  the  negligence  of  defendant's 
employees  in  running  the  train  may  have  been  the  immediate  cause. 
Sprague  v.  Fre.  E.  &  M.  V.  Ry.  Co.,  6  Dak.  86,  50  N.  W.  617. 

Contributory  Negligence — Draw^head.  In  an  action  against  a  rail- 
way company  for  personal  injuries  received  in  coupling  an  engine  to  a  car, 
held,  under  the  facts  in  this  case,  involving  the  length  of  the  drawhead  of 
the  car,  that  there  was  sufficient  evidence  of  defendant's  negligence  to  re- 
quire submission  of  that  question  to  a  jury;  held,  also  that  plaintiff  was  not 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.  97 

negligent  as  matter  of  law,  in  remaining  on  the  engine  footboard,  on  the  in- 
side of  a  curve,  nor  guilty  of  contributory  negligence  as  matter  of  law  for 
standing  there,  nor  for  standing  there  instead  of  going  ahead  and  setting  the 
pin  and  then  stepping  outside  the  track  before  the  engine  and  car  came  to- 
gether. Bennett  V.  N.  Pac.RR.  Co.,  2  N.  D.  112,  54  N.  W.  314.  Shipping 
Contract  -Caboose.  In  an  action  for  damges  for  loss  of  plaintiff's  husband 
through  alleged  negligence  of  defendant  by  which  he  was  killed,  held,  that 
in  the  absence  of  knowledge  by  defendant,  or  of  anything  tending  to  show 
that  contracts  under  which  certain  witnesses  had,  in  isolated  cases,  shipped 
livestock  over  portions  of  defendant's  railway,  contained  provisions  and 
agreements  that  the  owner  and  shipper  shall  feed,  water  and  take  care  of 
stock  during  transit  at  his  own  expense  and  risk,  and  that  persons  in  charge 
of  livestock  who  are  passed  on  trains  with  it  are  so  passed  to  take  care  of  the 
stock  and  must  ride  in  the  caboose  attached  to  the  train,  the  mere  fact  that 
they  had  ridden  in  the  car  with  their  stock  is  no  evidence  of  a  waiver  of 
such  stipulation,  whgn  freely  entered  into  and  acted  upon  by  the  shipper. 

Heumphreus  v.  Fre.,  E.  &  M.  V.  Ry.  Co.,   ....    S.  D 65  N.  W.  466. 

Where  a  shipper  of  immigrant  movables,  including  a  span  of  horses,  rides  in 
the  car  with  his  property  against  objection  of  the  conductor,  and  in  violation 
of  the  contract  of  shipment  in  which  he  expressly  agreed  to  ride  in  the  ca- 
boose, and  by  reason  of  such  fact  alone  sustains  a  fatal  injury,  the  evidence 
showing  no  gross  negligence  on  the  part  of  the  defendant  company,  he  is 
guilty  of  contributory  negligence  sufiRcient  to  defeat  recovery,  Corson,  P.  J., 

dissenting.      Heumphreus  v.   Pre. ,  E.  &  M.  V.  R.  R. ,  . . . .  S.  D ,  65  N. 

W.  466. 

Presumptive  Negligence.  In  an  action  against  a  railroad  company 
for  damages  from  prairie  fire,  heldi,  the  primary  fact  that  defendant's  train 
threw  out  the  fire  in  question  being  shown,  such  fact  constitutes  a  prima  fa- 
cie case  of  negligence,  and  creates  a  disputable  presumption  of  defendant's 
negligence.  Johnson  y.  N.  Pac.  R.  R.  Co.,  1  N.  D.  354,  48  N.  W.  227;  Kel- 
sey  V.  Ry.  Co.,  1  S.  D.  80,  45  N.  W.  207  and  cases  cited;  White  v.  Ry.  Co.,  1 
S.D.  326,  47  N.  W.  146;  Nelson  v.  Ry.  Co.  (Minn.),  28  N.  W.  215;  Carsen  v. 
Ry.  Co.,  29  Minn.  12,  11  N.  W.  122. 

Primary  Case  Overcome.  Where,  in  an  action  against  a  railroad 
company  for  negligently  killing  trespassing  stock,  the  undisputed  evidence 
is  that  the  train,  equipped  with  proper  appliances,  in  good  order,  and  run- 
ning at  a  reasonable  rate  of  speed,  could  not  be  stopped  so  as  to  avoid  the  ac- 
cident between  the  point  where  the  stock  might  possibly  have  been  discov- 
ered and  the  place  of  collision,  the  prima  facie  case  of  statutory  negligence 
is  overcome;  and  a  verdict  finding  negligence  against  the  defendant  is  un- 
supported by  the  evidence,  and  a  judgment  thereon  will  be  reversed.  Heb- 
ron et  al  v.  Chi.  M.  &  St.  P.  Ry.  Co,  4  S,  D.  538,  57  N.  W.  494.    Locomotive 

7— TP 


98  CODE  OF  CIVIL  PROCEDURE. 

V ■ • • • ■ — — — 

Setting  Pires.  Evidence  tending  to  prove  that  a  locomotive  engine  which 
caused  a  fire  destroying  plaintiffs  property  also  set  two  other  fires  about  the 
same  time,  is  not  necessarily  overcome  by  evidence  that  the  engine  was 
equipped  with  the  best  known  appliances  for  arresting  sparks,  was  in  good 
condition  and  managed  by  a  competent  and  trustworthy  engineer.  Such 
evidence  tends  to  raise  a  conflict  in  evidence  as  to  defendant's  negligence, 
which  must  be  determined  by  the  jury.  Smith  v.  Chi.  Mil.  &  St.  P.  Ry. 
Ck).,  4  S.  D.  71,  55  N.  W.  717;  R.  R.  Co.  v.  Hotham,  22  Kan.  41;  R.  R.  Co. 
V.  McCahill,  66  111.  28:  Huber  v.  Ry.  Co.  6  Dak.  392, 43  N.  W.  819;  R.  R.  Co.  v. 
Gladmon,  15  Wall.  401;  Hough  v.  R.  R.  Co.,  100  U.  S.  213;  Hoyt  v.  City  of 
Hudson,  41  Wis.  105;  Johnson  v.  R.  R.  Co.,  5  Duer,  (N.  Y.)  21;  Shear  &  R. 
Neg.  (4th  Ed.)  notes  to  sections  107,  109,  Id.  sec.  44;  Sanders  v.  Reister,  1 
Dak.  151,  46  N.  W.  680;  Wharton  on  Neg.  sec.  423;  Mares  v.  R.  R.  Co.,  3 
Dak.  336,  21  N.  W.  5.  Presumption  Overthrown —Court  Determines. 
The  presumption  of  negligence  from  setting  out  of  a  single  fire  is  one  of 
law,  and  whether  such  presumption  has  been  fully  met  ^.nd  overthrown  is  in 
the  first  instance  a  question  for  the  court;  evidence  examined,  and  held,  suf- 
ficient to  overthrow  the  presumption  in  this  case.     Smith  v.   N.  Pao.  R.  R. 

Co.,  ....  N.  D ,  53  N.   W.   173;  Spaulding  v.  R.  R.  Co.,  30  Wis.  110,  33 

Wis.  582;  Bolkman  v.  R.  R.  Co.,  5  Dak.  69,  37  N.  W.  731;  Huber  v.  R.  R. 
Co.,  6  Dak.  393,  43 N.  W.  819;  Koontz  v.  R.  R.  Co.,  (Ore.),  23  Pac.  820;  Kel- 
sey  V.  R.  R.  Co.,  1  S.  D.  80,  45  N.  W.  204;  R.  R.  Co.  v.  Talbot,  78  Ky.  621; 
R.  R.  Co.  v.  Packwood,  7  Am.  &  Eng.  R.  Cas.  584;  R.  R.  Co.  v.  Reese,  85 
Ala.  497,  5  So.  283;  and  the  mere  fact  that  the  fire  was  started  118  feet  from 
the  track  is  insufficient  in  itself  to  warrant  submission  of  the  question  of 
niegligence  to  the  jury.  Smith  v.  N.  Pac.  R.  R.  Co.  supra.  Gist  of  Ac- 
tion— B«buttal.  In  an  action  against  a  railroad  company  for  negligently 
killing  a  cow  trespassing  on  its  track,  negligence  is  the  gist  of  the  action, 
and  when  the  presumption  of  negligence. is  overcome  by  the  evidence  of  de- 
fendant, plaintiff,  to  entitle  him  to  recover,  must  prove  facts  tending  to 
show  the  killing  caused  by  negligence  of  defendant  sufficient  to  warrant  a 
jury  in  finding  such  negligence,  which  evidence  need  not  be  direct  and  pos- 
tive,  but  such  as  to  justify  reasonable  men  in  finding  the  killing  to  be  the 
result  of  negligence  by  defendant  or  its  employees.     Harrison  v.  Chi.   Mil. 

&  St.  P.  Ry.  Co., S.  D.    . . .,  60  N.  W.  405;  and  the  evidence  offered  by 

plaintiff  must  establish  more  than  a  mere  probability  that  the  killing  was 
caused  by  negligence  of  defendant,  it  must  be  sufficient  to  bring  conviction 
to  fair  minded  men,  without  resorting  to  conjecture  or  uncertain  and  incon- 
clusive inferences;  Id.  Hebron  v.  Ry.  Co.,  4  S.  D.  538,  57  N.  W.  494.  Kill- 
ing and  Value— Rebuttal.  In  an  action  against  a  railway  company  for  neg- 
ligent killing  of  an  animal,  proof  of  the  killing  and  of  the  value  constitutes 
a  prima  facie  case  for  plaintiff;  but  if  defendant  shows  conclusively  by  un- 
disputed evidence  that  the  train  was  in  good  repair  and  condition,  equipped 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.  99 

with  best  appliances,  etc.,  and  operated  skillfully  and  with  due  care,  the 
statutory  presumption  of  negligence  arising  from  the  killing  is  overcome; 
and  the  trial  court  erred  in  refusing  to  direct  a  verdict  for  defendant,  which 
error  was  reversible.  Hodgins  v.  Minneapolis  St.  P.  &  Ste.  M.  R.  Co.,  3  N. 
D.  382,  56  N.  W.  139. 

Neg-ligence — Affirmative  Proof.  Where  a  party  makes  a  fire  upon  his 
own  land  for  a  lawful  purpose,  and  the  fire  spreads  to  other  land,  the  person 
complaining  must  affirmatively  prove  negligence  of  which  the  fire  is  no  evi- 
dence; and  in  the  absence  of  evidence  tending  to  prove  such  negligence 

plaintiff  cannot  recover.     Mattoon  v.  Fre.   E.   &  M.  V.  R.  Co.,   S.  D. 

....,  60  N.  W.  69;  Shear.  &  R.  Nag.  (4th  Ed.),  sec.  668;  1  Thomp.  Neg. 
pp.  55-6;  Tourtellotv.  Rosebrook,  11  Mete.  (Mass.),  460;  Losee  v.  Buchan- 
an, 51  N.  Y.  476;  Clark  v.  Foot,  8  Johns.  421;  3  Bl.  Comm.  43;  Stewart  v. 
Hawley,  22  Bark.  619;  Calkins  v.  Barger,  44  Barb.  424;  Lansing  v.  Stone, 
37  Barb.  15;  Barnard  v.  Poor,  21  Pick.  378;  Batchelder  v.  Heagan,  18  Me. 
32;  Catron  v.  Nicols,  81  Mo.  80;  Higgins  v.  Dewey,  107  Mass.  494;  Sturgis  v. 
Bobbins,  62  Me.  289;  Sweeney  v.  Merrell,  38  Kan.  216, 16  Pac.  454;  Radcliffe 
V.  Mayor,  etc.,  4  N.  Y.  195;  Moe  v.  Job,  1  N.  D.  140,  45  N.  W.  700.  Express 
Proof.  In  an  action  against  a  railroad  company  for  negligent  injury  to  a 
passenger,  negligence  must  be  expressly  proved,  or  facts  shown  supporting 
an  imputation  of  negligence,  and  the  cause  or  the  nature  of  the  action  re.- 
sulting  in  the  injury  must  be  shown.     Saunders  v.  Chi.  &  N.  W.  Ry.  Co., 

. . . .  S.  D ,  60  N.  W.  148;  Lebarron  v.  Ferry  Co.,  11  A]len  (Mass.),  316; 

and  where  plaintiff  simply  proves  that  while  standing  at  the  open  door  of 
the  railway  coach  in  which  he  was  riding  "there  was  a  fearful  shock,"  re- 
sulting in  his  fall  and  injury,  nothing  showing  or  suggesting  the  cause  or 
nature  of  the  shock  there  is  no  evidence  of  defendant's  negligence,  and  a 
verdict  was  rightly  directed  in  its  favor.  Saunders  v.  Ry.  Co.  supra;  Hol- 
brook  V.  Ry.  Co.,  12  N.  Y.  236;  Curtis  v.  R.  R.  Co.  18  N.  Y.  534;  Thomas  v. 
R.  R.  Co.,  148  Pa.  St.  180,  23  Atl.  989;  Stern  v.  R.  R.  Co.,  76  Mich.  591,  43 
N.  W.  587;  Clark  v.  Barnwell,  12  How.  272. 

Directing  Verdict — Latent  Hazard — Servant.  In  an  action  for  dam- 
ages for  personal  injury  for  alleged  negligence  of  defendant.  Held,  that 
while  a  servant  generally  takes  upon  himself  the  risks  necessarily  incident 
to  his  employment,  still,  if  the  employer  has  knowledge  of  a  latent  hazard 
which  the  servant  does  not  know,  and  which,  with  proper  deligence  or  reas- 
onable observation  he  would  not  know,  he  ought  not  to  be  held  to  have  as- 
sumed such  concealed  hazard;  but  where  the  facts  or  conditions  increasing 
ordinary  hazard  are  or  should  be  plainly  apparent  to  the  servant,  without 
effort  on  his  part,  he  is  bound  to  see  and  understand,  and  if  he  continue 
work  without  objection,  he  will  be  held  to  have  assumed  such  risk;  that  in 
such  case  the  employer  is  not  required  to  inform  the  servant  of  facts  which 
he  is  justified  in  believing  the  servant  already  knows  and  understands;  and 


100  CODE  OF  CIVIL  PROCEDURE. 

held,  upon  the  evidence,  that  plaintiff  is  not  entitled  to  recover,  and  the 
trial  court  should  have  granted  defendant's  motion  to  direct  a  verdict  in  its 
favor.  Carlson  v.  Sioux  Falls  Water  Co.,  (on  rehearing)  . . . .  S.  D.  . . .,  65 
N.  W.  419. 

Negligence — Question  for  Jury.  When  the  facts  are  disputed,  or 
when  they  are  not  disputed  but  different  minds  might  honestly  draw  differ- 
ent conclusion  from  them,  the  question  of  negligence  should  be  left  to  the 
jury  for  their  determination.  Williams  v.  N.  Pac.  R.  R.  Co.  3  Dak.  168,  14 
N.  W.  97.  Jury  Determines  Evidence.  It  is  the  jury's  right  to  deter- 
mine the  probative  force  of  evidence;  and  a  positive  statement  of  a  witness 
may  be  rejected  by  the  jury,  in  the  light  of  other  evidence  and  circumstan- 
ces; so  held,  as  to  the  testimony  of  an  engineer  in  a  stock  killing  case. 
Lighthouse  v.  Chi.  Mil.  &  St.  P.  Ry.  Co.,  3  S.  D.  518.  54  N.  W.  320.  Fire 
Break.  In  an  action  to  recover  damages  caused  by  fire  set  in  violation  of 
sec.  2392  Comp.  Laws,'  evidence  was  given  tending  to  prove  that  defendant 
directed  his  employee,  by  whom  it  is  claimed  the  fire  was  set,  to  make  a 
"fire  break"  around  a  tree  claim  under  control  of  defendant,  and  to  "burn  it 
off;"  held,   the  case  should  have  been  submitted   to  the  jury.     Knight  v. 

Towles,   ....  S.  D ,62N.   W.   964;  R.  R-  Co.  v.   Stout,  17   Wall.   657; 

Held,  also,  that  the  question  whether  the  employee  was  acting  within  the 
scope  of  his  authority  should  also  have  been  submitted.  Knight  v.  Towles,  su- 
pra; Meachem  on  Ag.  sec.  745,  746;  People  v.  Roby,  52  Mich.  579,  18  N.  W. 
365;  George  v.  Gobey,  128  Mass.  289;  Worley  v.  Spurgeon,  38  la.  465;  Peter- 
son v.  Knoble,  35  Wis.  85;  Osborn  v.  McMasters,  40  Minn.  103,  41  N.  W. 
543;  Smith  v.  Reynolds,  8  Hun.  130;  Paley  on  Ag.  p.  294,  note  1;  Id.  302, 
note  1;  Mattoon  v.  R.  R.  Co S.  D ,  60  N.  W.  69. 

Conflicting  Evidence.  Where  the  evidence  is  conflicting  upon  a 
question  of  negligence  the  verdict  will  not  be  set  aside  on  the  ground  of  in- 
suflBciency  of  evidence;  evidence  examined,  and  held  sufficient  to  support  the 
verdict.  Bishop  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co.,  4  N.  D.  536,  62  N.  W.  605. 
Held,  also,  that  the  question  of  negligence  in  this  case,  involving  killing  an 
animal  at  a  private  crossing,  was  properly  submitted  to  the  jury.  Id.  Dif- 
fering Minds.  Facts  fairly  proved,  from  which  different  unprejudiced 
minds  might^properly  draw  different  conclusions  as  to  cause  of  death  or  in- 
jury proved,  are  sufficient  to  send  the  case  to  the  jury;  and  the  verdict  of 
the  jury  in  such-case,  affirmed- on'motion  for  a  new  trial,  will  not  be  dis- 
turbed.    Sweet  V.  Chi.  Mil.  &  St.  P.  Ry.  Co S.  D ,  60  N.  W.  77.  Nor 

is  an  eye  witness  to  the?killing^of  stock  necessary.  Id.  Stutsman  v.  R.  R. 
Co.  (la.),  6  N.  W.  63;  Clark  v.  R.  R.  Co.,  55  la.  455,  8  N.  W.  328. 

(d)  Directing  Verdict.  Where  the  court  below  denied  plaintiff's  mo- 
tion to  direct  a  verdict,  the  facts  alleged  in  the  complaint  being  supported 
by  undisputed  evidence,  and  the  facts  alleged  in  defendant's  answer  and 
proven  on  the  trial  were  clearly  insufficient  as  a  defense,  held,  error.  Western 


INSUFFICIENCY  OF  TttE  EVIDENCE — AGAINST  LAW.        101 

Pub.  House  V.  Murdick  et  al,  4  S.  D.  207,  56  N.  W,  120;  Western  Pub.  House 
V.  Bachman  et  al,  2  S.  D.  512,  51  N.  W.  214;  Western  Pub.  House  v.  Twp.  of 
Rock  (la.),  50  N.  W.  551.  Must  be  Undisputed.  When  a  verdict  is  direct- 
ed for  either  party  the  evidence  of  the  opposite  party  must  be  considered  as 
undisputed,  and  must  be  given  the  most  favorable  construction  for  him,  he 
must  have  the  benefit  of  all  reasonable  inferences  arising  therefrom;  and 
only  where  his  testimony  thus  considered,  could  not  legally  sustain  a  ver- 
dict in  his  favor,  is  a  court  warranted  in  directing  a  verdict  against  him. 
Carson  et  al  v.  Gillett,  2  N.  D.  255,  50  N.  W.  710.  Collateral  Security- 
Negligence.  The  mere  fact  that  the  creditor  selected  a  reputable  firm  of 
attorneys  to  make  collection  of  notes  and  mortgages  delivered  to  him  as 
collateral  security,  he  to  collect  them  and  apply  proceeds  to  the  debt 
secured,  there  being  a  delay  until  the  collateral  became  worthless,  caused 
by  negligence  of  the  attorneys,  will  not  warrant  the  court  in  directing  a 
verdict  in  the  creditor's  favor.  Plymouth  Co.  Bank  v.  Oilman,  6  Dak.  304, 
50  N.  W.  194.  Evidence  Not  Preponderating.  That  the  evidence  does  not 
preponderate  in  favor  of  plaintiff  is  not  ground  for  direction  of  a  verdict  in 

favor  of  defendant.     Mattoon  v.   Pre.,  E.  &  M.  V.  Ry.  Co., S.  D ,  60 

N.  W.  740,  affirming  same  case  in  60  N.  W.  69.  Ownership.  Where  evi- 
dence establishes  prima  facie  ownership  in  plaintiff,  it  was  error  in  the 
court  below  to  direct  a  verdict  for  the  defendant  on  the  ground  that  plain- 
tiff had  shown  no  evidence  of  its  title  to  the  property.  Warder,  Bushnell  & 
Glessner  Co.  v  Ingli,  1  S.  D.  155,  46  N.  W.  181.  A  failure  to  offer  evidence 
supporting   material  averments  entitles  defendant  to  a  directed  verdict. 

Hermann  v.  Sherin, S.  D ,  60  N.  "W.  145;  but  a  verdict  should  not  be 

directed  against  a  plaintiff  at  the  close  of  his  case,  when  the  facts  and  cir- 
cumstances fairly  tend  to  prove  the  allegations  of  his  complaint.  Id.;  Bates 
v.  R.  R.  Co.,  4  S.  D.  394,  57  N.  W.  72;  Williams  v.  R.  R.  Co.,  3  Dak.  168,  14 
N.  W.  97;  Mares  v.  R.  R.  Co.,  3  Dak.  336,  21  N.  W.  5. 

Directed  Verdict  is  Court's  Ruling.  Where  the  court  at  the  close  of 
the  testimony  directed  a  verdict,  the  verdict  is  not  that  of  the  jury  upon  a 
question  of  fact,  but  the  court's  ruling  upon  a  question  of  law,  and  if  erron- 
eous, is  an  error  of  law  occurring  on  the  trial,  and  may  be  reviewed  in  this 
court  without  motion  for  a  new  trial.    Jones  Lum.   and  Mer.   Co.   Paris, 

sheriff,.... S.  D ,  60  N.  W.  403;  Cravens  v.  Dewey,   13  Cal.  40;  Jones 

Lum.  &  Mer.  Co.  v.  Paris,  5  S.  D.  348,  58  N.  W.  813.  Any  Legal  Evidence. 
The  existence  of  any  legal  evidence  upon  which  a  verdict  can  be  based,  is  a 
question  of  law  for  a  court;  and  it  is  error  to  refuse  an  instruction  asked  by 
defendant  after  the  testimony  is  closed,  directing  a  verdict  in  his  favor, 
when  upon  the  evidence  in  the  record  such  verdict  must  properly  be  set 
aside.  Bowman  v.  Eppinger,  1  N.  D.  21,  44  N.  W.  1000;  Thomp.  on  Tr.,  sec. 
2247  2249;  Star  Wagon  Co.  v.  Matthiessen,  3  Dak.  233,  14  N.  W.  107. 
Where  the  court  at  the  close  of  the  trial  directed  a  verdict  in  defendant's 


102  CODE  OF  CIVIL  PROCEDURE. 

favor,  lield,  under  the  evidence  in  this  case,  such  order  was  substantial  error 
to  plaintiff's  prejudice,  and  a  new  trial  must  be  granted,  the  evidence  rea- 
sonably tending  to  sustain  the  allegations  of  the  complaint  and  should  have 
been  submitted  to  the  jury.  Slattery  v.  Donnelly,  1  N.  D.  264,  47  N.  W.  375. 
Conversion  of  Wheat.  Where  plaintiff  held  a  chattel  mortgage,  duly  filed, 
upon  wheat,  which  wheat  was  sold  to  the  defendant  Elevator  Co.  after  the 
mortgage  debt  was  due,  the  wheat  being  delivered  and  warehouse  receipt 
given  therefor,  which  receipt  was  by  direction  of  the  vendee  delivered  to  a 
co-defendant  who  claimed  the  wheat,  and  the  Elevator  Co.  cashed  the  re- 
ceipt, other  facts  and  circumstances  existing;  and  plaintiff  sued  both  de- 
fendants for  value  of  the  wheat  and  conversion  thereof,  held,  the  trial  court 
erred  in  denying  a  motion  to  direct  a  verdict  in  favor  of  the  Elevator  Co. 
Sanford  v.  Bell  et  al,  2  N.  D.  6, 48  N.  W.  434;  Jield,  further,  that  the  court  erred 
in  refusing  to  charge  the  jury  upon  the  law  of  conversion  of  property,  the  re- 
fusal being  for  the  reason  that  the  undisputed  testimony  showed  a  conver- 
sion of  the  wheat.  Id.  Claim  and  Delivery.  Where  the  undisputed  evi- 
dence shows  that  plaintiff  is  the  owner  and  entitled  to  immediate  possession 
of  property  described  in  his  complaint  in  claim  and  delivery,  the  court  may 
determine  the  question  of  ownership  and  possession  as  matters  of  law,  and 
instruct  the  jury  in  effect  requiring  them  to  find  from  the  evidence  the 
value  of  the  property  and  to  return  a  verdict  in  favor  of  plaintiff.  Griswold 
V.  Sundback  et  al,  4  S.  D.  441,  60  N.  W.  1068  (on  rehearing). 

Submission  to  Jury  Waived.  Where  defendant  moves  for  verdict  in 
his  favor  at  close  of  plaintiff's  case,  which  is  denied,  no  evidence  being  of- 
fered by  defendant,  and  the  court  thereafter  directs  a  verdict  for  plaintiff, 
defendant  not  requesting  submission  of  case  to  the  jury,  it  is  not  error  to 
direct  a  verdict  for  plaintiff,  if  there  was  sufficient  evidence  to  support  it. 

Yankton  F.   Ins.  Co.  v.  Fremont,  E.  &  M.  V.  R.  R.  Co., S.  D ,64 

N.  W.  514;  Dillon  v.  Cockroft,  90  N.  Y.  649;  Ormes  v.  Dauchy,  82  N.  Y. 
443;  O'Neill,  v.  James,  43  N.  Y.  84;  Trustees  v.  Kirk,  68  N.  Y.  459  (464); 
Winchell  v.  Hicks,  18  N.  Y.  558;  Grigsby  v.  Tel.  Co.,  5  S.  D.  561,  59  N.  W. 
734;  Barnes  v.  Ferine,  12  N.  Y.  18;  held,,  further,  that  the  evidence  sup- 
ports the  verdict  directed.  Yankton  F.  Ins.  Co.  v.  Pre.  E.  &  M.  V.  Ry.  Co., 
supra.  Void  Warrants — Ratification.  In  an  action  against  a  school  dis- 
trict upon  school  district  warrants,  lield,  under  the  evidence,  that  said  war- 
rants were  issued  under  a  void  contract,  and  could  not  be  made  binding  by 
subsequent  ratification,  and  the  trial  court  rightly  directed  a  verdicttin  fav- 
or of  defendant.  Capital  Bank  of  St.  Paul  v.  School  Dist.  No.  53  of  Barnes 
county,  1  N.  D.  479,  48  N.  W.  363;  Bank  v.  Willow  Lake  Tp.,  1  N.  D.  26,  44 
N.  W.  1002;  Farmers,  etc.  Bank  v.  School  Dist.  No.  53,  6  Dak.  255,  42  N.  W. 
767;  Kane  v.  School  Dist.  No.  3,  52  Wis.  502,  9  N.  W.  459;  Clark  v.  School 
Dist.  No.  1,  78  III.  474;  Dickinson  v.  City  of  Poughkeepsie,  75  N.  Y.  65;  People 
v.  Gleason,  121,  N.  Y.  631,  25  N.  E.  4;  Addis  v.  City  of  Pittsburg,   85  Pa. 


INSUFFICIENCY  OF  THE  EVIDENCE— AGAINST  LAW.        108 

St.  379.  Two  Causes — One  Affirmative  Defense.  In  an  action  on  a  fire  in- 
surance policy  where  defendant  put  in  issue  allegations  of  two  causes  of  ac- 
tion in  the  complaint,  and  set  up  an  affirmative  defense  good  only  on  the 
theory  that  the  action  was  on  the  policy,  held,  no  error  to  direct  a  verdict 
for  plaintiff  where  the  undisputed  evidence  established  a  liability  under  the 
policy,  although  plaintiff  failed  to  prove  an  alleged  promise.  Purcell  v.  St. 
Paul  F.  &  M.  Ins.  Co.,  ....  N.  D ,  64  N.  W.  943.  Warranty  of  Title- 
Eviction.  In  an  action  for  breach  of  Warranty  in  a  deed  of  land,  held,  that 
in  the  absence  of  fraud  or  anything  to  overcome  the  presumption  that  the 
vendor  is  able  to  respond  in  damages,  a  purchaser  in  possession  under  a 
deed  with  covenants  of  general  warranty,  who  has  neither  been  evicted 
nor  disturbed  in  his  possession  or  quiet  enjoyment,  cannot  by  showing  a 
mere  defect  in  title,  defeat  an  action  to  recover  a  balance  of  the  purchase 
price;  and  that  the  trial  court  properly  refused  to  direct  a  verdict  for  de- 
fendant upon  the  evidenoe.     Price  v.    Hubbard, S.  D ,  65  N.  W. 

436. 

Contributory  Negligence — Burden  of  Proof.  The  burden  of  proof 
showing  contributory  negligence  rests  upon  defendant,  and  unless  such  neg- 
ligence conclusively  appears  from  plaintiff's  testimony,  the   court  cannot 

take  the  case  from  the  jury.     Ouverson  v.  City  of  Grafton, N.  D , 

65  N.  W.  676;  Gram  v.  R.  R.  Co.,  1  N.  D.  252,  46  N.  W.  972.  Trespass- 
Reasonable  Care.  The  exercise  of  reasonable  care  to  prevent  injury  to 
trespassing  animals  upon  a  railway  track  relieves  the  company  from  liabil- 
ity in  case  the  animals  are  struck  by  a  train.     Lewis  v.   Fre.  E.  &.  M.  V. 

Ry.  Co., S.  D ,   63  N.  W.  781;  and  in   this  case   the  trial  court 

should  have  directed  a  verdict  for  defendant,  though  the  killing  is  admit- 
ted, when  the  statutory  presumption  of  negligence  arising  therefrom  has 
been  clearly  overcome  by  undisputed  evidence.     Id.     Hebron  v.  Ry.   Co.   4 

S.  D.  538,  57  N.  W.  494;  Harrison  v.  Ry.  Co.,  . . . .  S.  D ,60  N.  W.  405. 

Fire  Policy.  In  an  action  on  a  fire  insurance  policy,  the  facts  reviewed 
and  it  is  held,  that  the  evidence  shows  that  certain  persons  were  agents  of 
plaintiff  and  not  of  the  insurance  company.     Fromherz  v.  Yankton  P.  Ins. 

Co.,    ....    S.    D ,  63  N.  W.  784;  Allen  v.  Ins.  Co.,  123  N.  Y.  6,  25  N.  E. 

309;  Wilber  v.  Ins.  Co.,  122  N.  Y.  443,  25  N.  E.  966;  Ins.  Co.  v.  Reynolds,  36 
Mich.  502;  Lange  v.  Ins.  Co.,  3  Mo.  App.  591;  May  on  Ins.  sec.  123;  South 
Bend  Toy  Mfg.  Co.  v.  Dak.  P.  &  M.  Ins.  Co.,  2  S.  D.  17,  48  N.  W.  310;  held, 
further,  that  there  being  no  disputed  questions  of  fact,  a  verdict  for  de- 
fendant was  properly  directed.  Fromherz  v.  Yankton  P.  Ins.  Co.,  supra. 
Any  Material  Question.  If  upon  any  material  question  of  fact,  the  jury 
might  reasonably  have  found  for  plaintiff  under  the  evidence,  it  is  error  for 
the  court  to  direct  a  verdict  for  defendant.  Consolidated  Land  &  Irrigation 
Co.  V.  Hawley,  sheriff,  . . . .  S.  D ,  63  N.  W.  904. 

Undisputed — Legal  Efifect  Declared.     Where  the  evidence  leaves  the 


104  CODE  OF  CIVIL  PROCiEDURfi. 

facts  undisputed,  and  they  are  such  that  different  conclusion  or  infei-ences 
could  not  reasonably  be  drawn  from  them,  it  becomes  the  duty  of  the  court 

to  declare  their  legal  effect.     McCormick  Harvester  Co.  v.  Faulkner, 

S.  D ,  64  N.  W.  163;  and  upon  examination  of  the  evidence,  held,  that 

the  trial  court  properly  concluded  that  the  material  evidence  on  part  of  de- 
fendant was  undisputed,  and  was  such  that  but  one  conclusion  could  reasonably 
be  drawn  therefrom,  and  a  verdict  for  defendant  was  properly  directed.  Id. 
Bates  V.  R.  R.  Co.,  4  S.  D.  394,  57  N.  W.  72.  Fire  Policy— Other  Purposes. 
In  an  action  by  a  school  district  against  an  insurance  company  to  recover 
for  loss  of  school  house,  the  contract  containing  a  I'epresentation  that  the 
building  is  used  for  school  and  church  purposes,  and  that  if  used  for  other 
purposes  without  consent  of  insurer,  or  risk  be  increased,  etc.,  without  the 
company's  consent,  it  shall  be  null  and  void,  the  court  should  direct  a  verdict 
for  defendant  when  the  conclusive  undisputed  'evidence  shows  that  without 
defendant's  consent  the  district  officers,  duly  authorized,  knowingly  and 
habitually  permitted  the  building  to  be  used  for  other  purposes  thereby 
greatly  increasing  the  risk,  directly  resulting  in  the  loss.     School  Dist.  No. 

116  of  Minnehaha  Co.  v.  Ger.  Ins.  Co.  of  Preeport,  S.  D ,  64  N.  W. 

527. 

Plaintiffs  Theory — Eqmty  Contract.  In  an  action  against  one  part- 
ner for  deceit  practiced  by  his  partner,  the  trial  court,  in  excluding  ev- 
idence, asserted  that  plaintiff  cannot  recover  on  the  theory  he  is  pursuing; 
held,  plaintiff  is  not  bound,  in  absence  of  notice  that  he  must  do  so,  to  offer 
proof  of  other  allegations  in  his  complaint;  for  purpose  of  review  here  they 
are  deemed  capable  of  proof  by  plaintiff  had  not  the  adverse  ruling  been 

made.    Brundage  v.^  Mellon,  . . . .  N.  D ,  63  N.  W.  209;  Loab  v.  Willis, 

100  N.  Y.  231,  2  N.  Ei.  177.  In  an  action  upon  notes  for  purchase  money  of 
realty,  a  bond  for  deed  having  been  given  for  the  realty  by  plaintiff  to  de- 
fendant, and  plaintiff,  without  tendering  a  conveyance  thereunder,  quit- 
claimed the  land  to  one  who  convej'ed  the  same  to  the  defendant,  plaintiff 
retaining  the  notes,  held,  error  to  direct  a  verdict  for  plaintiff  on  notes. 

Shelly  V.  Mikkelson,  . . . .  N.  D ,  63  N.  W.  2!0;   Bank  v.  Hagner,  1  Pet. 

455;  Loud  v.  Water  Co.,  153  U.  S.  564,  14  Sup.  Ct.  Rep.  928;  Hogan  v.  Kyle, 
7  Wash.  595,  35  Pac.  399;  Baumann  v.  Pinkney,  118  N.  Y.  604,  23  N.  E.  916; 
Rock  Island  Lum.  «&  Mf'g  Co.  v.  Fairmont  Town  Co.,  (Kan.  Sup.)  32  Pac. 
1100;  22  Am.  &  Eng.  Ency.  Law  947,  note  7;  Comp.  Laws,  sec.  4627-4629, 
4635;  Johnson  v.  Wadsworth,  (Ore.),  34  Pac.  13;  Warv.  on  Vend.  p.  961; 
Rindge  v.  Baker,  57  N.  Y.  209;  held,  further,  that  this  was  essentiallj'  an  ac- 
tion in  equity,  in  which  vendor  must  tender  a  conveyance  or  be  compellable 
by  decree  to  perform  his  contract,  or  he  cannot  recover;  Id.;  held,  further, 
that  the  notes  and  bond  were  one  contract  embracing  mutual  dependent  cov- 
enants. Id.  Hill  V.  Grigsby,  35  Cal.  656;  Underwood  v.  Tew  (Wash.),  34 
Pac.  1100;  Classell  v.  Coleman,  94  Cal.  260,  29  Pac,  508;  Devine  v.  Devine,  58 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.        105 

Barb.  264;  McCroskey  v.  Ladd,  96  Cal.  435,  31  Pac.  558;  held,  further,  that 
defendant  might  assume,  prima  facie,  that  plaintiff,  who  transferred  the 
land  to  a  stranger  without  tendering  conveyance  to  defendant,  intended  to 
abandon  the  contract  and  to  turn  over  to  his  grantee  all  his  rights  and  obli- 
gations under  the  contract  and  the  trust  relation  created  by  it,  and  if  defen- 
dant purchased  of  plaintiff's  grantee  without  notice  that  plaintiff  had  re- 
served the  right  to  recover  the  purchase  money,  plaintiff  could  not  recover  in 
this  suit;  Shelly  v.  Mikkelson,  supra;  Sons  of  Temperance  v.  Brown,  9  Minn, 
157  (Gil.  144);  Ten  Eick  v.  Simpson,  1  Sandf.  Ch.  246;  Mackreth  v.  Symmons,  15 
Ves.  350;  Champion  v.  Brown,  6  Johns  Ch.  403;  2  Story's  Eq,  Jur.  sec.  784; 
Burwell  v.  Jackson,  9  N.  Y.  535;  Wyvell  v.  Jones,  37  Minn.  68,  33  N.  W.  43; 
Bennett  v.  Phelps,  12  Minn.  326  (Gil.  216);  Taylor  v.  Read,  19  Minn.  372  (Gil. 
317). 

Rescinding  Contract — Warranty.  In  an  action  upon  a  note  given  for 
purchase  price  of  a  separator,  involving  a  contract  of  sale  and  certain  war- 
ranties and  representations  thereunder,  and  other  specifications  in  the  con- 
tract, defendant  alleging  breach  of  warranty,  and  a  counterclaim,  and  a  ver- 
dict was  directed  for  plaintiff,  on  the  theory  that  defendants  had  waived 
claims  for  damages  or  by  way  of  counterclaim;  held,  that  the  proof  showed 
failure  of  plaintiff  to  remedy  the  defect  in  the  machine,  and  that  under  the 
contract  defendants  were  bound  to  return  it,  and  by  failing  to  do  so  waiVed 
any  claim  for  breach  of  warranty;  and  that  the  motion  upon  this  evidence, 
to  direct  the  verdict,  was  properly  granted.  Minn.  Thresher  Mf'g  Co.  v. 
Lincoln  et  al,  4  N.  D.  410,  61  N.  W.  145;  Fahey  v.  Machine  Co.,  3  N.  D  220, 
55  N.  W.  580.     A  verdict  based  upon  and  sustained  by  legal  evidence  will 

not  be  disturbed  on  appeal.      Demmon  v.  Mullen,   S.  D ,  62  N.  W. 

380;  Klockenbaum  v.  Pierson,  22  Cal.  160;  Cooper  v.  State,  120  Ind.  377,  22 
N.  E.  320;  Carson  v.  Henderson,  34  Kan.  404,  8  Pac.  727;  Evans  v.  Christo- 
pherson,  24  Minn.  330;  Petefish  v.  Witkins,  124  111.  384,  16  N.  E.  248;  State 
V.  Oeder,  80  la.  72,  45  N.  W.  543;  Dollmanv.  Munson,  20  Mo.  85,  2  S.  W.  134; 
Wieting  v.  Town  of  Millston,  77  Wis.  523,  46  N.  W.  879.  No  Question  of 
Fact — Sale.  Where  the  court  directed  a  verdict  for  defendants,  on  the 
ground  that  no  question  of  fact  was  presented  for  a  jury,  the  action  being 
one  to  recover  for  fraudulent  representations  on  sale  of  a  horse,  held,  in.  the 
absence  of  an  allegation  that  plaintiff  relied  upon  the  representations,  the 
evidence  that  he  did  should  be  conclusive  of  the  fact,  and  that  the  evidence 
would  not  justify  the  jury  in  finding  for  the  plaintiff  on  that  issue,  and  that 
the  court  properly  directed  a  verdict.  Sioux  Banking  Co.  v.  Kendall  et  al, 
. . . .  S.  D.  . . .  ,  62  N.  W.  377;  Bank  v.  North,  2  S.  D.  480,  51  N.  W.  98;  Coo- 
ley  on  Torts,  502;  Lefler  v.  Field,  52  N.  Y.  621;  Slaughter's  Admn'r  v.  Ger- 
son,  13  Wall.  379;  Taylor  v.  Guest,  58  N.  Y.  262;  Van  de  Sande  v.  Hall,  13 
How.  Pr.  4.58;  Goings  v.  White,  33  Ind.  125. 

Consideration — Settlement  of  Dispute.  Action  on  promissory  note, 
and  verdict  directed  for  plaintiff,  principal  defense  being  want  of  considera- 


106  CODE  OF  CIVIL  PROCEDURE. 

tion;  evidence  examined  and  found  insufficient  to  show  that  a  compromise 
was  intended  to  be  made,  or  that  the  dispute  between  the  parties  was  finally 
settled;  the  note  arising  out  of  that  transaction.  McGlynn  v.  Scott,  4  N.  D. 
18,  58  N.  W.  460;  Anthony  v.  Boyd  (R.  I.),  5  Atl.  701;  Demars  v.  Mfg.  Co. 
(Minn.),  35  N.  W.  1;  Smith  v.  Farra  j;Ore. ),  28  Pac.  241;  Wahl  v.  Barnum, 
116  N.  Y.  87,  22  N.  E.  280;  Pitkin  v.  Noyes,  48  N.  H.  294;  White  v.  Hoyt,  73 
N.  Y,  505;  Ex  Parte  Banner,  17  Ch.  Div.  480;  Miles  v.  Estate  Co.,  32  Ch. 
Div.  266-275;  Spahr  v.  HoUingshead,  8  Blackf.  (Ind.)  415;  Creutz  v.  Heil 
(Ky.)  12  S.  W.  926;  Bellows  v.  Sowles,  55  Vt.  39;  Kidder  v.  Blake,  45  N.  H. 
630;  Cline  v.  Templeton,  78  Ky.  550;  Everingham  v.  Meighan,  55  Wis.  354, 
13  N.  W.  269;  Turner  v.  Peacock,  13  N.  C.  303;  Feeter  v.  Webber,  78  N.  Y. 
334;  2  Pom.  Eq.  Jur.  9850;  1  Pars.  Cont.  pp.  438-9;  Kercheval  v.  Doty,  31 
Wis.  476-485;  Grandin  v.  Grandin  (N.  J.  Sup.),  9  Atl.  756.  Guaranty  of 
Collectibility.  In  an  action  upon  a  guaranty  of  collectibility  of  promissory 
notes  secured  by  chattel  mortgage,  new  notes  and  mortgages  from  debtors 
and  a  third  party  being  taken  as  collateral  to  the  original  papers,  held,  that 
plaintiffs  had  the  burden  of  showing,  in  order  to  recover,  that  they  had 
prosecuted  all  legal  remedies  against  the  original  debtors,  and  that  in  this 
case  they  failed  to  do  so,  being  guilty  of  laches,  notwithstanding  insolvency 
of  the  original  debtors;  and  the  trial  court  would  have  been  justified  in 
directing  a  verdict  for  defendants,  and  properly  instructed  for  defendants; 
held,  also,  in  the  absence  of  evidence  on  the  part  of  the  defense,  that  the 
verdict  is  justified  by  the  evidence.  Roberts,  Throp&Co.  v.  Laughlinetal, 
4  N.  D.  167,  59  N.  W.  967;  Craig  v.  Parkis,  40  N.  Y.  181;  McMurray  v. 
Noyes,  72  N.  Y.  523;  Crane  v.  Wheeler  (Minn.)  50  N.  W.  1033;  Dewey  v. 
Investment  Co.,  Id.  1032;  Brandt  on  Surety.  &  G.,  sec.  98,  99.  Fraudxilent 
Mortg^age.  The  undisputed  evidence  showed  that  an  apparently  valid  chat- 
tel mortgage  was  withheld  from  record  by  express  agreement  of  the  parties, 
for  the  purpose  of  enabling  the  mortgagor  to  purchase  more  goods,  and  that 
while  so  withheld  a  large  part  of  the  goods  for  which  plaintiff  ••ecovered 
judgment  on  which  execution  issued  and  the  sheriff  directed  to  levy,  was 
purchased  of  plaintiff;  held,  that  the  mortgage  was  presumptively  fraudu- 
lent and  void  as  to  such  creditor,  and  the  trial  court  properly  directed  a  ver- 
dict for  plaintiff  as  matter  of  law  (Ayers,  Weatherwax  &  Reid  Co.  v.  Sund- 
back,  distinguished);  Jewett  et  al  v.  Sundback,  sheriff,  5  S.  D.  Ill,  58  N.W. 
20;  Paper  Co.  v.  Guenther,  67  Wis.  101,  30  N.  W.  298;  Thompson  v.  Van- 
Vechten,  27  N.  Y.  568;  Fearey  v.  Cummings,  41  Mich.  383,  1  N.  W.  946; 
Crippen  v.  Fletcher,  56  Mich.  386,  23  N.  W.  56;  Potts  v.  Hart,  99  N.  Y.  168, 
1  N.  E.  605;  Robinson  v.  Elliott,  22  Wall  513.  Accounting— Burden  of 
Proof  The  burden  of  proof  is  on  one  suing  his  agent  for  moneys  received 
by  him  for  use  of  plaintiff,  to  show  the  amount  received  and  not  accounted 
for;  and  the  agent  has  the  burden  of  accounting  for  all  moneys  which  he 
admits  he  received;  held,  under  the  facts  in  this  case,  it  was  error  to  direct 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.        107 

a  verdict  for  defendant.      Anderson  v.  First.  Nat.  Bank  of  Grand  Forks,  4 
N.  D.  182,  59  N.  W.  1029. 

(e).     Question  for  Jury. 

Different  Conclusions  on  Evidence.  Where  the  evidence  leaves  the 
facts  undisputed,  and  different  conclusions  or  inferences  could  not  reasona- 
bly be  drawn  therefrom,  the  court  should  declare  their  legal  effect;  but  if 
the  facts  are  disputed  or,  if  undisputed,  are  such  that  different  impartial 
minds  might  fairly  draw  different  conclusions  from  them,  they  should  be 
submitted  to  the  jury.  Bates  v.  Fremont  E.  &  M.  V.  R.  Co.,  4  S.  D.  394,  57 
N.  W.  72;  Williams  v.  R.  R.  Co.,  3  Dak.  168,  14  N.  W.  97;  Mares  v.  North. 
Pac.  R.  R.  Co.,  3  Dak.  336,  21  N.  W.  5;  R.  R.  Co.  v.  Van  Steinburg,  17 
Mich.  122;  R.  R.  Co.  v.  Stout,  17  Wall.  657;  Norton  v.  Ittner,  56  Mo.  351; 
Abbott  V.  Ry.  Co.,  30  Minn.,  482,  16  N.  W.  266;  Totten  v.  R.  R.  Co.,  10  N.Y. 
Supp  572;  1]  Am.  &  Eng.  Ency..  of  Law,  p.  463  et  seq.;  2  Thomp.  Neg.  p. 
1236.  Bank  Draft — Agency.  In  an  action  upon  a  draft  drawn  by  the  cash- 
ier of  a  banking  partnership  upon  himself  and  endorsed  by  him  to  plaintiffs, 
held,  in  view  of  the  evidence,  that  the  presumption  that  said  draft  was  drawn 
without  authority  was  overcome  by  the  facts  and  circumstances  in  eviedence, 
which  evidence  should  have  been  permitted  to  go  to  the  jury  under  proper 
instructions  relating  to  acquiescence  or  authority.  Noyes  et  al  v.  Crandall 
etal,....S.  D....,  61  N.  W.  806.  "Beer,"— Judicial  Notice.  In  the  ab- 
sence of  a  statute  declaring  that  "beer"  shall  be  deemed  an  intoxicating 
liquor,  the  mere  statement  of  witnesses  that  they  bought  beer,  without  evi- 
dence as  to  the  purpose  for  which  it  was  bought,  or  that  it  contained  malt, 
or  of  its  effect  when  used,  or  of  the  manner  of  its  making,  is  insufficient  to 
show  it  an  intoxicant;  and  the  court  will  not  take  judicial  notice  that  beer 
so  sold  was  a  malt  or  intoxicating  liquor.  State  v.  Sioux  Falls  Brewing  Co. 
et  al,  5  S.  D.  39,  58  N.  W.  1.  (Rehearing  denied,  5  S.  D.  360,  58  N.  W.  928); 
Blatz  V.  Rohrback,  116  N.  Y.  450  22  N.  E.  1049;  11  Am.  &  Eng.  Ency.  of 
Law,  pp.  579,  580;  Nesto  v.  State  (Fla.)  5  So.  8;  Hansberg  v.  People,  120  111. 
21,  8  N.  E.  857;  Com.  v.  Chappel.  116  Mass.  7;  Com.  v.  Bios,  Id.  56;  State  v. 
Starr,  67  Me.  242;  State  v.  Wall.  34  Me.  165;  State  v.  Biddle,  54  N.  H.  379; 
State  V.  Beswick,  13  R.  I.  211;  Kerkow  v.  Bauer,  15  Neb.  150,  18  N.  W.  27; 
Black  on  Intoxicating  Liquors,  sec.  521  and  cases  there  cited;  Rice  on  Ev. 
p.  97.  Same — Question  for  Jury.  Under  a  statute  which  does  not  specifi- 
cally name  the  liquors  the  sale  of  which  it  prohibits,  but  considers  all 
liquors  intoxicating  which  are  spirituous,  malt,  vinous,  or  fermented,  as 
well  as  all  mixtures  thereof  which  will  produce  intoxication,  the  malt  or  in- 
toxicating quality  of  beer  is  a  matter  of  evidence,  the  weight  and  sufficiency 
of  which  is  for  the  court  or  jury,  as  the  case  may  be.  State  v.  Sioux  Falld 
Brew.  Co.  et  al  supra,  and  cases  there  cited.  "Lager  Beer."  Courts  will 
take  judicial  notice  that  the  drink  known  in  this  state  as  "lager 
beer"  is  an  intoxicating  liquor;  the  evidence  being  positive  and  uncontra- 


108  CODE  OF  CIVIL  PROCEDURE. 

dieted,  there  being  no  evidence  tending  to  show  a  sale  of  anything  else; 
there  is  nothing  to  be  I'oconciled  between  the  holdings  in  State  v.   Brewing 

Co.,  5  S.  D.  39,  56  N.  W.  1,  and  this  case;  State  v.  Church,  . . . .  S.  D , 

60  N.  Y.  143. 

Acceptance  of  Security — Law  Question.  Where  the  undisputed  evi- 
dence shows  that  at  a  creditor's  request  the  debtor  promised  security  with- 
out mentioning  any  property  for  security;  the  filing  of  a  chattel  moi'tgage 
of  which  the  debtor  notified  the  creditor,  the  creditor  accepting  the  secur- 
ity; lield,  as  between  the  mortgagee  and  an  execution  creditor  of  the  mort- 
gagor whose  lien  did  not  attach  until  after  the  mortgage  was  filed,  that 
there  was  no  question  as*  to  delivery  and  acceptance  of  the  mortgage  to  be 
submitted  to  the  jury.  Keith  v.  Haggart,  2  N.  D.  18,  48  N.  W.  432.  Exe- 
cution of  Mortgage.  And  in  an  action  between  such  mortgagee  and  a  rep- 
resentative of  the  creditor  of  such  mortgagor  whose  debt  existed  prior  to 
the  execution  of  the  mortgage,  and  where  the  only  evidence  that  the  mort- 
gage was  witnessed  by  parties  whose  name  appeared  thereon  as  witnesses, 
came  from  a  witness  against  whom  impeaching  testimony  was  introduced, 
and  the  evidence  also  tended  to  show  that  one  of  the  alleged  witnesses  left  the 
territory  before  the  mortgage  was  executed  and  did  not  return,  held^  that 
the  question  of  the  proper  execution  of  the  mortgage  should  have  been  sub- 
mitted to  the  jury.  Keith  v.  Haggert,  supra.  Invoice  Price.  Where  the 
question  of  the  purchase  of  an  invoice  of  lumber,  and  the  price  thereof,  was 
involved,  held,  under  the  facts  in  this  case,  that  it  was  error  to  refuse  to  sub- 
mit to  the  jury  the  question  whether  the  agreed  price  differed  from  the  in- 
voice price;  and  that  defendant  was  not  bound  by  the  price  stated  in  the  in- 
voice. Edwards  &  McCoUoch  Lum.  Co.  v.  Baker,  2  N.  D.  289,  50  N.  W.  718; 
Strohn  v.  R.  R.  Co.,  21  Wis.  562;  King  v.  Woodbridge,  34  Vt.  565;  2  Whart. 
Ev.  sec.  927;  4  Lawson  Rights,  Rem.  &  Pr.,  sec.  1853;  Black  v.  R.  R.  Co., 
Ill  111.  351.  Notes  in  Payment— Time  for  Approval.  Where  creditors, 
who  had  received  from  a  debtor  certain  notes  of  third  persons,  to  be  accept- 
ed in  payment  if  approved  by  a  creditor,  held,  a  delay  of  over  forty  days  after 
receiving  the  notes,  in  notifying  debtor  of  the  disapproval  of  them,  raised  a 
question  of  fact  for  the  jury  as  to  whether  more  than  a  reasonable  time  was 
taken  in  which  to  manifest  disapproval.      Acme  Harvesting  Co.  v.  Axtell, 

. . . .  N.  D ,  65  N.  W.  680;  19  Am.  &  Eng.  Ency.  Law  642,  note  2;  W^ash- 

ington  v.  Johnson,  7  Humph.  468.  Rescission  of  Sale — Property  State- 
ment. In  an  action  in  claim  and  delivery  to  recover  possession  of  an  invoice 
x)f  merchandise  sold  by  plaintiffs,  lield,  under  the  evidence  appearing,  that  a 
statement  of  assets  and  liabilities  made  as  basis  for  credit,  and  itemizing  the 
property,  is  not  suflicient  as  matter  of  law,  as  basis  of  rescission  of  a  sale  and 
delivery  of  goods  upon  the  grounds  of  false  and  fraudulent  representations, 
it  appearing  from  undisputed  evidence  that  plaintiffs  knew  when  the  credit 
was  extended  that  defendants  were  unable  to  pay  their  debts  as  they  fell  due 


INSUFFICIENCY  OF  THE   EVIDENCE — AGAINST  LAW.        109 

in  course  of  business;  and  the  fact  that  defendants  omitted  to  notify  plaint- 
iffs of  a  pending  suit  upon  a  portion  of  their  indebtedness,  for  the  alleged 
reason  that  they  believed  the  creditor  in  the  suit  never  intended  to  proceed 
to  judgment,  was  a  circumstance  to  be  considei-ed  by  the  jury  with  other  ev- 
idence.    Tootle  et  al  v.  Petrie,  sheriff, S.  D.  . . . .,  65  N.  W.  43. 

(/),     Pleadings — Issues. 

See  same  headings  under  Subd.  7,  Infra. 

Improper  Evidence.  Upon  a  material  issue  evidence  which  this  court 
regards  as  important,  consisting  of  a  statement  of  the  cashier  of  the  defend- 
ant bank  that  the  failure  to  collect  the  note  and  mortgage  with  reference  to 
which  the  bank  was  charged  with  negligence,  was  the  fault  and  negligence 
of  the  bank,  was  improperly  admitted  by  the  trial  court;  such  statement  not  be- 
ing a  statement  of  fact  and  not  within  the  scope  of  the  authority  of  the  cashier; 
and  this  court  cannot  say  that  such  evidence  did  not  unjustly  prejudice 
plaintiff's  case.  Plymouth  Co.  v.  Gilman,  3  S.  D.  170,  52  N.  W.  869  (af- 
firmed on  rehearing  4  S.  D.  265,  56  N.  W.  892.)  Countervailing  Proof—. 
Findings.  Where  several  issues  of  fact  are  involved  in  a  pleading,  and  the 
referee  returns  findings  omitting  findings  upon  some  issues,  and  judgment 
is  rendered  upon  such  findings  without  suggestion  or  objection  of  the  par- 
ties, which  judgment  is  consistent  with  and  supported  by  the  findings,  the 
judgment  will  not  be  reversed  unless  appellant  shows  that  evidence  was  of- 
fered upon  one  or  more  of  such  issues  not  foimd  upon  by  the  referee,  and 
that  such  evidence  would  have  supported  a  finding  wnich  would  countervail 
the  findings  made.  Merchant's  Nat.  Bank  v.  McKinney  et  al,  4  S.  D.  226, 
55  N.  W.  929;  Edinburgh-Amercan  L.  &  M.  Co.  v.  City  of  Mitchell,  1  S.  D. 
593,  48  N.  W.  134;  Hutchings  v.  Castle,  48  Cal.  152;  Himmelman  v.  Henry, 
84  Cal.  104,  23  Pac.  1098;  Winslow  v.  Gohransen,  88  Cal.  450,  26  Pac.  504; 
Dolliver  v.  Dolliver,  94  Cal.  642,  30  Pac.  4;  Fincher  v.  Malcolmson  (Cal.), 
30  Pac.  835.  Appellant  Cannot  Complain,  When.  An  appellant  cannot 
complain  in  this  court  that  no  finding  was  returned  upon  an  issue,  when  the 
record  shows  that  such  finding  if  made  must  have  been  against  him.  Mer- 
chants Nat.  Bank  v .  McKinney  et  al  supra,  and  cases  last  above  cited.  Admis- 
sion in  Answer.  The  question  of  sufficiency  of  the  evidence  to  sustain  the 
verdict  will  not  be  considered  as  to  an  allegation  not  controverted  by  the 
answer.  Bauder  v.  Schamber  et  al, S.  D ,  63  N.  W.  227.  Amend- 
ment— Proof.  In  an  action  to  recover  an  alleged  balance  in  defendant's 
hands  arising  from  a  supposed  sale  by  defendant  as  agent  for  plaintiff,  it  ap- 
pearing on  a  review  of  the  evidence  that  plaintiff  was  misled  by  defendant's 
conduct  to  believe  the  latter  had  sold  to  a  third  person,  on  which  theory 
the  complaint  was  framed,  defendant's  cashier  having  testified  to  the  un- 
disputed fact  that  defendant  sold  the  property  to  itself,  field,  an  abuse  of  dis- 
cretion for  the  trial  court  to  refuse  to  allow  plaintiff  to  amend  his  complaint 
to  conform  to  the  proof.     Anderson  v.  First  Nat.  Bank  of  Grand  Forks, 


110  CODE  OF  CIVIL  PROCEDURE 

N.  D ,  64  N.  W.   114;  Cook  v.  Croysan  (Ore.),  36  Pac.  532;  Drew  v. 

Hicks  (Cal.)  35  Pac.  563,  565;  Cooper  v.  Wood  (Colo.  App.),  27  Pac.  884; 
Yetzer  v.  Young,  3  S.  D.  263,  52  N.  W.  1054;  Jenkinson  v.  City  of  Vermil- 
lion, 3  S.  D.  238,  52  N.  W.  1066;  Lefler  v.  Sherwood,  21  Hun.  573.  Incom- 
petent Evidence — Prejudice  Presumed.  When  error  is  shown  in  the  re- 
fusal of  the  court  to  strike  out  material  incompetent  evidence,  the  presump- 
tion is  that  prejudice  resulted  to  the  party;  and  unless  this  court  can  see 
that  no  such  result  ensued  the  case  must  be  reversed  and  a  new  trial  granted. 
Wendt  V.  Chi.  St.  P.  M.  &  O.  Ry.  Co.,  4  S.  D.  476,  57  N.  W.  226.  Eflfect  of 
Findings — Claim  and  Delivery.  A  verdict  of  a  jury  in  an  action  of  claim 
and  delivery  finding  the  issues  in  favor  of  defendant,  will  ordinarily  be  con- 
strued with  reference  to  the  presumption  that  the  property  in  question  was 
taken  from  the  possession  of  defendant,  and  not  as  finding  that  defendant 
was  not  in  possession  at  commencement  of  the  action.     Pitts  Agricultural 

Works  V.  Young, S.  D ,  62  N.  W.  432.     Immaterial  Issues.     And 

a  judgment  below,  fully  sustained  by  the  findings  of  fact  and  conclusions  of 
law,  will  not  be  disturbed  because  a  referee  fails  to  find  on  immaterial  is- 
sues, and  no  findings  were  presented  by  the  complaining  party  and  no  re- 
quest for  additional  findings  or  different  conclusions  of  law.  Adams  & 
Westlake  Co.  v.  Deyette  et  al,  5  S.  D.  418;  59  N.  W.  214.  Burnap  v.  Bank, 
96  N.  Y.  125;  Thompson  v.  Bank,  82  N.  Y.  1;  Conklin  v.  Hinds,  16  Minn. 
457  (Gil.   411);  Foster  v.  Voigtlander  (Kan.);  13  Pac.  777. 

(g)     Instructions. 

See  "Directing  Verdict,"  supra.  See  also,  same  heading  under  subdi- 
visions 1  and  7  of  this  section. 

Assuming  Facts.  An  instruction  is  properly  refused  which  assumes 
and  is  predicated  upon  a  fact,  as  established,  which  the  evidence  leaves  in 
dispute.  Rapp  v.  Giddings,  4  S.  D.  492,  57  N.  W.  237.  Fraud— Assuming 
Facts.  In  an  action  for  the  value  of  wheat  of  which  plaintiffs  claim  to  be 
owners,  the  evidence  examined,  and  it  is  held,  that  the  verdict  in  favor  of 
the  plaintiff  is  supported  by  the  evidence;  that  the  trial  court  properly  in- 
structed the  jury  that  proofs  of  fraud  must  be  clear  and  convincing;  and  that 
instructions  asked  requiring  the  court  to  assume  existence  of  a  fact  in  issue 

are  properly  refused.     Cavello  et  al  v.  Taylor, N.  D. ,  63  N.  W.  889. 

Assuming  Facts.  Where  the  court  instructed  the  jury  as  to  what  a  wit- 
ness testified,  and  that  there  was  no  evidence  to  dispute  such  testimony, 
held,  in  the  light  of  the  proofs  in  this  case,  such  instruction  was  not  error. 
Moe  v.  Job,  1  N.  D.  140,  45  N.  W.  700.  Proceeds  of  Wheat— Prejudice. 
There  being  a  conflict  in  the  evidence  as  to  whether  plaintiff  au- 
thorized certain  persons  to  draw  wheat  to  the  elevator  and  pay  them- 
selves for  services  performed  for  him  from  the  proceeds,  an  instruc- 
tion to  the  effect  that  although  the  jury  find  the  men  were  auth- 
orised to  do  so,  yet  if  a  third  persop  notified  defendant  not  to  pay  them  the 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.        Ill 

defendant  is  liable  for  paying  over  the  money,  is  erroneous,  and  the  court 
cannot  say  that  it  was  without  prejudice.  Linton  v.  Minneapolis,  N.  &  Ele- 
vator Co.,  2  N.  D.  232,  50  N.  W.  357.  Arbitrary  Disregard.  The  positive 
testimony  of  an  uncontradicted  witness  cannot  be  disregarded  by  court  or 
jury  arbritrarily  or  capriciously.      Drew  et  al  v.  Watertown  F.  Insurance 

Co.,  ....S.  D 61   N.  W.  34;  Newton  v.    Pope,    1  Cow.    109;  Lomer  v. 

Meeker,  25  N.  Y.  361;  McMahon  v.  People,  120111.  584,  11  N.  E.  883;  El  wood 
V.  Tel.  Co.,  45  N.  Y.  553;  Dickenson  v.  Bently  (la.),  45  N.  W.  903.  Specific 
Question — Presumption.  The  jury,  in  an  action  at  law,  answering  a  spe- 
cific question  of  fact,  found  a  definite  amount  due,  the  correctness  of  which 
answer  was  not  challenged  by  either  party;  held,  plaintiff  is  presumptively 
entitled  to  judgment  for  such  amount.  John  A.  Tolman  &  Co,  v.  Savage 
et  al,  5  S.  D.  496,  59  N.  W.  882. 

(h).     The  Record. 

Findings — New  Trial.  Insufficiency  of  evidence  to  justify  the  findings 
of  the  court  or  verdict  of  the  jury  will  only  be  reviewed  by  this  court  when 
made  one  of  the  grounds  for  motion  for  a  new  trial,  and  the  order  denying 
or  granting  the  motion  is  brought  to  this  court  for  review.     Gade  v.  Collins 

et  al S.  D ,  66  N.  W.  466;  Pierce  v.  Manning,  2  S.  D.  517,  51  N.  W. 

332;  Hawkins  v.  Hubbard,  2  S.  D.  631,  51  N.  W.  774;  Norwegian  Plow  Co.  v. 
Bellon,  4  S.  D.  384,  57  N.  W.  17;  Evanson  v.  Webster,  3  S.  D.  382,  53  N.  W. 
747.  Part  of  Evidence  Shown.  A  verdict  of  conviction  will  not  be  set 
aside  on  the  ground  that  the  evidence  does  not  support  it  when  the  bill  of 
exceptions  only  purports  to  set  out  a  part  of  the  evidence.  Bill  or  Case 
Necessary.  The  evidence  not  being  presented  herein  by  a  case  or  bill  of 
exceptions,  a  motion  for  a  new  trial  on  the  ground  that  the  findings  were 
not  supported  by  the  evidence,  must  be  overruled.  Golden  Terra  Mining 
Co.  V.  Smith  et  al,  2  Dak.  377,  11  N.  W.  98.  Findings— Presumption. 
When  the  evidence  before  a  referee  is  not  preserved  in  a  bill  of  exceptions, 
and  the  insufficiency  of  the  evidence  to  sustain  his  findings  is  not  assigned 
as  error,  it  will  be  presumed  on  appeal  that  the  findings  accord  with  and 
are  sustained  by  the  evidence.  Adams  &  Westlake  Co.  v.  Deyette  et  al,  5 
S.D.  418,  59  N. W.  214;  Mf'g  Co.  v.  Galloway,  5  S.  D.  205,  58  N.  W.  565;  Pierce 
v.  Manning,  2  S.  D.  517,  51  N.  W.  332;  Hawkins  v.  Hubbard,  2  S.  D.  631,  51 
N.  W.  774.  Error— When  Not  Seversible.  Where  it  appears  that  upon 
the  uncontroverted  facts  the  plaintiff  cannot  recover,  a  verdict  and  judg' 
ment  for  defendants  will  not  be  disturbed  by  this  court  even  when  the  record 
shows  errors  in  procedure.  Prairie  School  Twp.  v.  Haseleu  et  al,  3  N.  D. 
328,  55  k.  W.  938.  Motion  for  New  Trial  Necessary.  In  order  to  review 
the  evidence  in  this  court,  to  determine  the  sufficiency  of  the  same  to  justify 
the  verdict  of  a  jury  or  the  findings  of  the  court,  a  motion  for  a  new  trial 
must  have  been  made  below  upon  that  ground,  in  the  absence  of  which  mo- 
tion this  court  will  not  review  the  evidence.     Evanson  v.  Webster,  3  S.   D, 


112  CODE  OF  CIVIL  PROCEDURE. 

382,  53  N.  W.  747  (on  rehearing  58  N.  W.  669),  Pierce  v.  Manning,  2  S.  D. 
517,  51  N.  W.  332;  Lingerman  v.  Nave,  31  Ind.  222;  Kirch  v.  Davis,  55  Wis. 
287,  11  N.  W.  689;  Ingraham  v.  Gildermester,  2  Cal.  483;  Nesbit  v.  Hines, 
17  Kan.  316;  R.  R.  Co.  v.  McCartney,  1  Neb.  398;  Kemp  v.  Lawson,  12  Ind. 
678;  Ford  v.  Wilson  (Ga.),  11  S.  E.  559;  Westfall  v.  Dungan,  14  Ohio  St.  276; 
■Smith  v.  Gillett,  50  111.  299;  Polk  v.  State,  4  Mo.  544;  Smith  v.  HoUis,  46 
Ark.  21;  Whitmore  v.  Shiverick,  3  Nev.  288;  Byrne  v.  R.  R.  Co.,  29  Miqn. 
200,  12  N.  W.  698.  But  see,  Waldron  v.  Evans,  1  Dak.  10,  46  N.  W.  607. 
The  question  of  the  sufficiency  of  the  evidence  to  support  the  findings  will 
not  be  examined  upon  appeal,  when  no  motion  for  a  new  trial  is  made.  Nor- 
wegian Plow  Co.  V.  Bellon  et  al,  4  S.  D.  384,  57  N.  W.  17. 

(/).     Specification  of  Particulars. 

Notice  of  Intention — Particulars.  Where  the  notice  of  intention 
states  as  ground  for  a  new  trial,  the  insufficiency  of  the  evidence,  but  no 
further  specification  of  the  particulars  in  which  such  evidence  is  insufficient 
is  made  in  the  statement  or  the  assignments  of  error,  such  objection  will  not 
be  considered.  Nat.  Cash  R«g'r.  Co.  v.  Pfister  et  al,  5  S.  D.  143,  58  N.  W. 
270;  Pierce  v.  Manning,  2  S.  D.  517,  51  N.  W.  332  and  cases  there  cited. 
Statutory  Language  Insufficient.  Where  the  notice  of  intention  to  move 
for  a  new  trial  states  as  grounds  the  insufficiency  of  the  evidence,  and  er- 
rors in  law  occurring  at  the  trial,  but  no  further  specification  occurs  in  the 
record,  the  trial  court  may  properly  deny  the  motion.     Billingsly   v.    Hiles 

etal, S.  D 61  N.  W.  687.     Must   Specify.     Under  Code  of  Civil 

Procedure,  sec.  279  (sec.  5081  Comp.  Laws),  providing  that  when  an  excep- 
tion is  to  the  verdict  or  decision  for  insufficiency  of  evidence  to  sustain  it, 
the  objection  must  specify  particulars,  etc.,  the  evidence  cannot  be  examin- 
ed on  a  mere  objection  that  the  evidence  is  insufficient  to  justify  the  decis- 
ion. Henry  v.  Dean,  6  Dak.  78,  50  N.  W.  487.  Sufficiency  of  the  evidence 
to  support  the  verdict  cannot  be  assailed  in  this  court  when  in  neither  the 
notice  of  intention  nor  the  bill  of  exceptions  are  particulars  specified 
wherein  the  evidence  is  alleged  to  be  insufficient.  Pickert  v.  Rugg  et  al,  1 
N.  D.  230,  46  N.  W.  446.  Assig^nment  of  Error.  An  assignment  that  the 
verdict  is  not  sustained  by  the  evidence  will  not  be  considered  where  such 
was  noj-  made  ground  in  the  motion  for  a  new  trial,  the  record  containing 

no  specification  of  particulars,  etc.     Frye  et  al  v.  Ferguson,   S.  D , 

61  N.  W.  161. 

Government  Sxirvey.  When  the  only  issue  tried  by  the  court  was 
whether  a  certain  survey  corresponded  with  the  original  government  sur- 
vey, the  specifications  in  the  statement  as  to  the  particulars  in  which  the 
evidence  was  insufficient  to  justify  the  findings  are,  that  the  evidence  shows 
that  the  resurvey  was  not  made  in  accordance  with  the  original  survey,  and 
that  the  section  and  quarter  section  corners  in  question,  as  established  by 
the  resurvey,  do  not  correspond  with  the  original  government  corners;  held. 


INSUFFICIENCY  OF  THE  EVIDENCE — AGAINST  LAW.        113 

that  the  specifications  are  sufficient.  Kellara,  .] .,  dissenting.  Randall  et  al 
V.  Burke  Township  of  Minnehaha  County  et  al.  4  S.  D.  337,  57  N. 
W.  4.  Exceptions  to  Findings.  Where  exceptions  to  findings  of  fact 
do  not  specify  wherein  such  findings  are  not  justified  by  the  evidence 
this  court  will  not  explore  the  record  to  determine  the  question.     Hostet. 

ter  V.  Brooks  Elevator  Co., N.  D ,  61  N.  W.  49:  sec.  5090  Comp. 

Laws;  Laws  N.  D.  1891,  Ch.  121;  Sup.  Ct.  Rule  No.  13;  held,  however,  that 
the  findings  in  this  case  are  supported  by  the  evidence,  action  being  to  re- 
cover value  of  wheat.  Id. 

2.     Verdict  or  Decision  Against  Law.     • 

Consult  decisions  under  "Verdict,"  Subd.  1,  2  and  7  of  this  section. 

Verdict  Which  Cannot  Stand.  A  verdict  that  must  be  either  with- 
out support  in  the  evidence,  or  contrary  to  the  instructions  of  the  court  can 
not  be  permitted  to  stand;  McMillan  et  al  v.  Aitchison,  3  N,  D.  183,  54  N. 
W.  1030;  Fuller  v.  Elevator  Co.,  2  N.  D.  220,  50  N.  W.  359.  Inconsistent 
Findings— Joint  Contract.  Where  the  several  findings  of  the  trial  court 
are  inconsistent  with  each  other,  and  inconsistent  with  the  theory  either 
that  the  contract  in  question  was  that  of  the  wife,  or  that  of  the  husband,  or 
the  joint  contract  of  both,  the  judgment  for  plaintiff  upon  such  findings 
should  be  reversed  and  a  new  trial  granted.  Cawley  et  al  v.  Day  et  al,  4  S. 
D.  221,  56  N.  W.  749.  Value  of  Notes  in  Settlement.  Where  defendants 
selected  certain  notes  from  those  taken  in  payment  for  machinery  sold  by 
plaintiff's  assignor,  under  a  contract,  which  notes  were  sufficient  at  face 
value  to  pay  commissions  due  to  plaintiff's  assignor,  they  so  far  com- 
plied with  the  contract  as  to  be  liable  only  for  actual  value  for 
notes  selected;  and  the  verdict  for  the  face  value  thereof  was  erron- 
eous, and  a  new  trial  should  have  been  graixted,  as  the  evidence  was  undis- 
puted that  the  actual  value  of  the  notes  selected  was  much  less  than  their 
face  value.  Brown  v.  McCaull  et  al,  . . . .  S.  D.  . . .,  60  N.  W.  151.  Special 
Questions — Ansvirers  Disregarded.  Answers  to  special  interrogatories  sub- 
mitted to  a  jury  by  an  equity  court,  which  are  in  direct  conflict  with  undis- 
puted evidence,  should  be  disregarded  and  judgment  entered  upon  findings 
justified  and  sustained  by  evidence  upon  the  trial.  Upton  v.  Hugos  et  al, 
S.  D ,  64  N.  W.  523.  Usury— Running  Account— Note.  To  en- 
title the  party  to  recover  usurious  interest  under  sec.  5198  Rev.  Stat.  U.  S., 
such  interest  must  have  been  actually  paid  either  in  money  or  its  equiva- 
lent; and  the  mere  charging  of  such  interest  in  a  running  account  is  not 
a  payment  of  the  same  within  the  meaning  of  that  section.     Davey  et  al   v. 

First  Nat.  Bank  of  Deadwood,   ....  S.  D 66   N.   W.   122;  Brown  v. 

Bank,  72  Pa.    St.  209;  Hall  v.  Bank,  30  Neb.   99,    46  N.  W.  150.     Neither 
will  the  including  of  such  usurious  interest  in  a  promissory  note  entitle  the 
maker  to  recover  it,  until  such  note  is  in  fact  paid.     Davey  et  al.  v.    First 
Nat.  Bank  of  Deadwood,  supra. 
8— TP 


114  CODE  OF  CIVIL  PROCEDURE. 

Neither  General  Nor  Special.  In  replevin  for  goods  taken  by  defend- 
ant as  sheriff  under  attachment  and  claimed  by  plaintiff  under  chattel  mort- 
gages, a  verdict  "in  favor  of  plaintiff  and  against  defendant,  except  as  to 
the  mortgage  *  *  *  which  we  find  to  be  null  and  void,  and  that  plaintiff 
is  entitled  to  possession  of  the  property,"  and  finding  value  of  the  property 
and  assessing  plaintiffs  damages  for  taking  and  detenfton  of  the  property,  a 
judgment  that  defendant  was  entitled  to  possession  of,  or,  if  return  could 
not  be  had,  to  the  value  of  his  interest  in  the  property,  and  for  costs,  was 
erroneous,  the  verdict  being  neither  general  or  special;  and  the  special 
finding  was  insufficient  to  |ustain  the  judgment.  Rudolph  v.  North,  6  Dak. 
79,  50  N.  W.  487.  Tliresher's  Lden — Location  of  Grain.  In  an  action  by 
the  owner  of  grain  for  conversion  of  same,  defendant  having  sold  same  un- 
der claim  of  a  thresher's  lien,  held,  that  where  defendant  rested  his  defense 
without  testimony  tending  to  show  where  the  grain  was  grown,  plaintiff  tes- 
tifying that  no  grain  was  grown  in  the  year  in  question  upon  land  described 
in  the  lien  statement,  it  was  error  to  deny  plaintiff's  motion  to  strike  out  all 
evidence  relating  to  the  lien.  Martin  v.  Hawthorne  et  al,  3  N.  D.  412,  57 
N.  W.  87. 

SUBDIVISION  7— Error  in  Law. 

See  subd.  1,  supra,  and  subd.  6,  and  subheads  "Instructions,"  "Direct- 
ing Verdict,"  and  "Against  Law,"  supra. 

7.     Generally. 

Priority  of  Liens — Chang^ing  Flans.  In  an  action  to  enforce  a  me- 
chanic's lien  involving  priority  between  the  lien  and  a  mortgage,  held,  under 
the  facts  stated,  that  the  trial  court  properly  excluded  evidence  tending  to 
show  that  changes  were  made  in  the  plans  and  specifications  in  question 
after  the  loan  to  secure  which  the  mortgage  was  made,  was  advanced.  Hax- 
tun  Steam  Heater  Co.  v.  Giordan  et  al,  2  N.  D.  246,  50  N.  W.  708;  Neilson  v. 
Ry.  Co.,  44  la.  71;  Dubois  v.  Wilson,  21  Mo.  213;  Ins.  Co.  v.  Pringle,  2  Sei-g. 
&  R.  138;  Gordon  v.  Torrey,  15  N,  J.  Eq.  112;  Myer  v.  Construction  Co.,  100 
U.  S.  457;  Davis  v.  Bilsaland,  18  Wall.  659;  Parrish  &  Hazard's  Appeals,  83 
Pa  St.  Ill;  Ins.  Co.  v.  Paulison,  28  N.  J.  Eq.  304;  Brooks  v.  Ry.  Co.  101  U. 
S.  443;  Getchell  v.  Allen,  34  la.  559;  Ins.  Co.  v.  Slye,  45  la.  613:  Phillips' 
Mechanic's  Liens,  sec.  220;  Norris,  App.  30  Pa.  St.  122,  Waiver  of  Lien — 
Other  Security.  A  statutory  lien  is  not  waived  by  taking  other  security 
unless  the  intent  to  waive  the  lien  and  rely  exclusively  on  the  security  ap- 
pears. Joslyn  V.  Smith  et  al,  2  N.  D.  53,  49  N.  W.  382;  Pratt  v.  Eaton,  65 
Mo.  165;  Clark  v.  Moore,  64  111.  274;  Gilcrest  v.  Gottschalk,  39  la.  311;  Mon- 
teith  V.  Printing  Co.  16  Mo.  App.  450;  Peck  v.  Bridwell,  10  Mo.  App.  524. 
Restoring  Record  of  Prior  Mortgage— Notice.  When  the  rights  of  inno- 
cent third  parties  will  not  be  prejudiced,  a  court  will  restore  the  record  and 
give  a  first  mortgage  priority,  where  the  junior  mortgage  was  taken  sub- 


ERROR   IN   LAW.  115 


ject  to  and  with  actual  knowledge  of  the  existence  and  record  of  the  prior 
mortgage,  when  the  same  has  been  subsequently  discharged  of  record  by 
mistake  and  in  ignorance  of  such  intervening  lien,  for  the  purpose  of  substi- 
tuting a  new  mortgage  for  such  prior  mortgage.     Upton  v.  Hugos  et  al, 

S.  D ,  64  N.  W.  523.    Enjoining'  Idquor  Sales — Common  Nuisance.     In 

an  action  in  equity  on  behalf  of  the  state  by  the  district  attorney  under  sec. 
13,  chap.  110,  Laws  N.  D.  1890,  to  enjoin  defendants  from  further  prosecu- 
tion of  their  liquor  business,  lield,  since  passage  by  congress  of  the  "Wilson 
Bill,"  that  evidence  showing  either  illegal  sales,  or  the  illegal  keeping 
of  intoxicating  liquors  in  a  place  makes  it  a  common  nuisance,  and  that  the 
judgment  of  the  trial  court  dismissing  the  action,  under  the  facts  stated, 
must  be  reversed  and  a  new  trial  granted.  State  ex  rel  Bartlett,  Dist.  At- 
torney, V.  Fraser  et  al,  1  N.  D.  425,  48  N.  W.  343;  Mugler  v.  Kansas,  123  U. 
S.  623,  8  Sup.  Ct.  Rep.  273;  Kansas  v.  Ziebold,  Id.;  Kidd  v.  Pearson,  128  U. 
S.  1,  9  Sup.  Ct.  6;  In  re  Spickler,  43  Fed.  653;  In  re  Van  Vliet,  Id.  761; 
State  V.  Chapman  et  al,  1  S.  D.  414,  47  N.  W.  411. 

Elector — Mark  in  Circle.  When  the  elector  makes  a  mark  or  cross 
in  the  circle  at  the  head  of  a  party  ticket,  and  erases  no  name  thereon,  the 
vote  must  be  counted  for  the  entire  party  ticket.     (Following   Valliar  v. 

Brakke,  . . . .  S.  D ,  64  N.  W.  180. )     McKittrick  v.  Pardee,  . . . .  S .  D , 

65  N.  W.  23;  and  a  cross  made  at  the  head  of  a  party  ticket,  but  not  in  the 
circle,  is  a  nullity,  and  the  vote  cannot  be  counted  for  candidates  on  that 
ticket  not  otherwise  marked  as  prescribed  by  law;  Id.  Cross  at  Left.  When 
across  is  made  in  the  circle,  and  no  name  on  the  party  ticket  is  erased,  cross- 
es at  the  left  of  the  names  of  candidates  thereon  are  without  effect;  Id. 
Writing  Name.  The  law  confers  no  authority  upon  an  elector  to  write  the 
name  printed  on  one  party  ticket  upon  another  party  ticket.  McKittrick 
V.  Pardee,  supra.  Two  Circle  Crosses  Neutralize.  Crosses  in  the  circle  at 
the  head  of  two  or  more  party  tickets  neutralize  each  other  as  indicating 
the  intent  of  the  elector  to  vote  either  of  the  party  tickets;  Id.  Erasures. 
An  elector  who  erases  the  names  of  all  candidates  on  all  party  tickets  ex- 
cept one  does  not  thereby  vote  the  ticket  on  which  the  names  are  not 
erased,  unless  he  makes  a  cross  in  the  circle  at  the  head  of  such  party 
ticket,  or  at  the  left  of  the  names  of  candidates  for  whom  he  desires  to  vote 
upon  such  ticket;  Id.  No  Cross.  When  no  cross  is  made  in  the  circle  at 
the  head  of  any  party  ticket,  no  erasures  are  necessary;  the  elector  may  de- 
signate the  candidate  for  whom  he  desires  to  vote  by  making  a  cross  at  the 
left  of  his  name;  Id.  At  Right.  A  cross  at  the  right  of  a  candidate's  name 
is  a  nullity,  and  should  be  disregarded;  Id. 

Thresher's  Lien — Striking  Out  Evidence.  In  an  action  for  the  value 
of  wheat  alleged  to  have  been  converted  by  defendants  under  a  claim  for 
thresher's  lien,  held,  in  the  absence  of  proof,  that  the  grain  was  grown  on 
the  land  described  in  the  lien  statement,  it  was  error  to  deny  plaintiff's  mo- 


116  CODE  OF  CIVIL  PROCEDURE 

tion  to  strike  out  all  evidence  relating  to  the  lien.  Martin  v.  Hawthorne  et 
al,  8  N.  D.  412,  57  N.  W.  87.  Mortgage— "Threshing  Big"— Earnings  — 
Filings  In  this  state  it  is  competent  for  the  owner  and  operator  of  a  "thresh- 
ing rig"  to  mortgage  the  future  earnings  thereof.     Sykes  v.  Hannawalt, 

N.  D.  ..'..,  65  N.  W.  682;  Preston  Nat.  Bank  v.  Geo.  T.  Smith  Middlings 
Purifier  Co.,  84  Mich.  364,  47  N.  W.  502;  Kirkland  v.  Brune,  31  Grat.  127; 
Tingle  v.  Fisher,  20  W.  Va.  497;  Bacon  v.  Bonham,  27  N.  J.  Eq.  209;  Will- 
iamson V.  R.  R.  Co.,  26  N.  J.  Eq.  898;  Mf'g  Co.  v.  Robinson,  83  Iowa  567,  49 
N.  W.  1031;  sec.  4328,  Comp.  Laws;  Bank  v.  Mann,  2  N.  D.  456,  51  N.  W. 
946;  Hostetter  v.  Elevator  Co.,  4  N.  D.  867,  61  N.  W.  49.  But  such  mort- 
gage must  be  filed  for  record  as  any  other  chattel  mortgage,  and  if  not  so 
filed  is  void  as  against  a  creditor  of  mortgagor  who  became  such  in  ignor- 
ance of  the  existence  of  the  mortgage,  after  it  was  executed  and  before  fil- 
ing, relying  upon  mortgagor's  apparent  ownership  of  such  earnings.  Sykes 
T.  Hannawalt,  supra.  Percolating  Water — To  Owner  of  Soil.  Water  per- 
colating through  the  soil  or  coming  to  the  surface  in  a  spring  belongs  to  the 
owner  of  the  soil  in  such  a  sense  and  to  "such  an  extent  that  he  is  entitled  to 

the  exclusive  right  to  use  and  dispose  of  the  same.      Metcalf  v.  Nelson, 

S.D ,  65  N.  W.  911;  sec.  2771  Comp.  Laws;  Wilson  v.  City  of  New  Bed- 
ford, 108  Mass.  265;  Roath  v.  Driscoll,  20  Ct.  533;  Village  of  Delhi  v.  You- 
mans,  45  N.  Y,  362;  Frazier  v.  Brown,  12  Ohio  St.  294.  City  of  Emporia  v. 
Sodem,  25  Kan.  588;  R.  R.  Co.  v.  Dufour,  95  Cal.  615,  30  Pac.  783;  Clark  v. 
Conroe,  38  Vt.  469;  Taylor  v.  Fickas,  64  Ind.  167.  Natural  Spring— Perco- 
lations. In  the  absence  of  evidence  as  to  its  source,  it  is  presumed  that  a 
natural  spring  of  water  is  formed  by  the  ordinary  percolation  of  water  in  the 

soil.    Metcalf  v.  Nelson,  ....  S.D ,  65  N.  W,  911;  Hanson  v.  McCue,  42 

Cal.  303;  Elster  v.  City  of  Springfield  (Ohio  Sup.),  30  N.  E.  278;  Swett  v. 
Cutts,  50  N.  H.  439;  Davis  v.  Spaulding  (Mass.),  32  N.  E.  650;  Buffum  v. 
Harris,  5  R.  I.  243;  Bliss  v,  Greeley,  45  N.  Y.  671.  Color  of  Office— Acts 
Valid  as  to  Whom.  To  protect  the  public  and  prevent  failure  of  justice, 
the  apparently  official  acts  of  one  having  color  of  authority  to  hold  and  per- 
form the  duties  of  a  public  office  are  valid  in  respect  to  rights  of  interested 
third  persons,  but  void  so  far  as  they  may  be  of  exclusive  interest  or  ulti- 
mate benefit  to  him.     Flypaa  v.  Brown  Co., S.  D ,  62  N.  W.  962; 

Andrews  v.  Portland,  79  Me.  484,  10  Atl.  458;  Mayor,  etc.,  of  Memphis  v. 
Woodward,  12  Heisk.  (Tenn.),  499;  McVeney  v.  Mayor,  etc.,  80  N.  Y.  185; 
People  v.  Smyth,  28  Cal.  21. 

2.     Pleadings. 

See  "Practice — Procedure,"  infra. 

(a).     Complaint. 

Negligence — Locomotive.  An  allegation  that  the  engine  "was  so  neg- 
ligently, carelessly,  and  insufficiently  constructed  and  equipped"  as  to  emit 
and  throw  out  large  sparks  of  fire,  included  the  condition  of  such  engine  for  ar- 


ERROR  IN   LAW.  117 


resting  sparks,  whether  resulting  from  its  original  construction  or  from  de- 
fects from  use,  wear,  or  injury  to  its  parts.  Smith  v.  Chi.  Mil.  &  St.  P.  Ry. 
Co.  4  S.  D.  71,  55  N.  W.  717.  Complaint —Natural  and  Direct  Damages. 
A  complaint  showing  a  contract,  a  breach,  and  alleging  damages  directly 
resulting  therefrom,  states  a  cause  of  action  permitting  evidence  as  to  dam- 
ages naturally  and  directly  resulting.  Johnson  v.  Gilmore,  ....  S.  D.  . . ., 
60  N.  W.  1070;  Hudson  v.  Archer,  4  S.  D.  128,  55  N.  W.  1099;  Peters  v. 
Cooper  (Mich.)  54  N.  W.  694;  Richter  v.  Meyer,  (Ind.  App.),  31  N.  E.  582. 
Obstruction  in  Street —Allegation  of  Contact  With.  In  an  action  against 
a  city  to  recover  damages  resulting  from  injury  caused  by  the  negligent  act 
of  defendant  in  permitting  an  obstruction  to  stand  upon  the  traveled  portion 
of  the  street,  at  which  the  horse  behind  which  plaintiff  was  riding  became 
frightened,  and  the  injury  resulted,  it  is  not  necessary  to  allege  any  actual 

contact  with  such  obstruction.     Ouvei-son  v.  City  of  Grafton, N.  D 

65  N.  W.  676. 

Complaint  -  Water  From  Spring,  A  complaint  showing  plaintiff  to 
be  the  owner  of  land  upon  which  such  a  spring  is  located,  and  that  defendant, 
against  his  objection  and  in  defiance  of  his  protest  has  wilfully,  wrongfully 
and  habitually  taken  large  quantities  of  water  from  such  spring,  states  a  cause 
of  action  in  favor  of  plaintiff  and  against  defendant.     Fuller,   J.   dissenting. 

Metcalf  V.  Nelson S.  D ,  65  N,  W.  911;  5  Am.  &  Eng.  Ency.  of  Law, 

p.  2  and  cases  cited.  Insurance — Alleging  Two  Causes  of  Action — De- 
fendant's Evidence.  Where  a  complaint  stated  a  cause  of  action  on  an  in- 
surance policy,  and  also  one  on  a  promise  to  pay  an  amount  in  settlement  of 
loss  thereunder,  plaintiff  not  being  required  to  elect  on  which  cause  of  ac- 
tion he  would  stand,  and  defendant  set  up  a  defense  good  on  the  theory  that 
the  action  was  on  the  policy,  with  general  denials  as  to  both  causes  of  ac- 
tion, but  offered  no  evidence  to  sustain  the  defense  to  the  action  on  the  pol- 
icy, held,  no  error  to  direct  a  verdict  for  plaintiff,  the  undisputed  evidence 
showing  liability  under  the  policy,    but  no  proof  of  the  promise.     Pilrcell  v. 

St.  Paul  F.  &  M.  Ins.  Co.,   . . . .  N.  D ,  64  N.  W.  943;  2  Wood  Ins.  sec. 

450;  Stephen  PI.  251;  1  Chit.  PI.  226;  Bliss  Code  PI.  sec.  288,  292,  293; 
Conaughty  v.  Nichols,  42  N.  Y.  83;  Hawley  v.  Wilkinson,  18  Minn.  525  (Gil. 
468);  Plumber  v.  Mold,  22  Minn.  15;  Fern  v.  Vanderbilt,  13  Abb.  Prac.  72; 
Seymour  v.  Lorillard,  51  N.  Y.  Super.  Ct.  399;  Blank  v.  Hartshorn,  37  Hun 
101;  Rothchild  v.  Ry.  Co.  (Supra.)  10  N.  Y.  Supp.  36.  Allegation  of  Value 
— Evidence  of  Contract — Theory.  Where  the  complaint  alleged  an  agree- 
ment to  pay  plaintiff  a  reasonable  value  for  his  services,  and  the  evidence 
showed  the  agreement  to  be  based  upon  and  the  services  measured  by  the 
amount  due  upon  a  contract  for  quarrying  certain  stone,  held,  plaintiff  could 
not  recover  on  the  theory  of  his  complaint,  but  if,  without  objection,  the 
case  was  being  tried  on  the  theory  of  the  evidence,  it  was  error  to  exclude 
defendant's  evidence  of  what  the  contract  was,  and  how  much  was  due  upon 
it.     Zeimet  v.  Phillips  et  al,  . . . .  S.  D ,  65  N.  W.  418. 


118  CODE  OF  CIVIL  PROCEDURE. 

Election  Contest — Necessary  Allegations.  To  authorize  an  election 
contest  under  sec.  1489  Com  p.  Laws,  the  phiintiff  must  allege  facts  prima 
facie  entitling  him  to  the  office  and  must  claim  a  right  to  the  office;  and 
held,  that  the  notice  of  contest  in  question  is  insufficient  and  confers  no  jur- 
isdiction upon  the  court.     Batterton  V.   B^'uUer,    S.  D ,  60  N.  W. 

1071.  Same — New  Cause  of  Action — Xdmitations.  An  amended  contest 
notice,  alleging  contestant  to  be  in  office  under  appointment  by  the  gov- 
ernor to  fill  vacancy,  by  virtue  of  which  incumbency  at  the  time  of  the  elec- 
tion he  seeks  to  hold  the  office,  taken  with  the  statement  in  original  contest 
notice  that  defendant  was  ineligible,  states  a  new  cause  of  action.  Batter- 
ton  v.  Fuller,  supra;  and  such  amended  notice  made  and  served  more  than 
forty  days  after  canvass  of  the  election  votes,  was  barred  by  the  statute  of 
limitations.  Id.  Anderson  v.  Mayers,  50  Cal.  525;  Bowler  v.  Eisenhood, 
1  S.  D.  577,  48  N.  W.  136;  McCrary  on  Elect,  sec.  295;  Com.  v.  Cluley,  56 
Pa.  St.  270;  Saunders  v.  Haynes,  13  Cal.  145;  State  v.  Smith,  14  Wis.  497; 
State  V.  Boal,  46  Mo.  528;  State  v.  Vail,  53  Mo.  97;  People  v.  Clute,  50  N. 
Y.  451;  Opinion  of  the  judges,  52  Me.  597;  Abbott's  Case  Sen.  No.  58; 
Const.  S,  D.  Art.  5,  sec.  36,  37;  Laws  1890,  chap.  78,  sec.  2;  State  v.  Har- 
rison, 113  Ind.  434,  16  N.  E.  384;  State  v.  Benedict,  15  Minn.  198  (Gil.  153); 
State  V.  Sullivan,  (Minn.),  47  N.  W.  802;  Advisory  Opinion  (Pla.),  5  So. 
613;  State  v.  Lusk,  18  Mo.  333;  Com.  v.  Hanley,  9  Pa.  St.  513;  People  v. 
Parker,  37,  Cal.  639;  People  v.  Tilton,  Id.  614;  9  Am.  &  Eng.  Ency.  Law  p. 
562  and  cases  cited. 

Unincorporated  Association — Individual  liiability.  Parties  uniting 
in  a  voluntary  unincorporated  association,  and  who  for  convenience  contract 
under  an  associate  name,  render  themselves  personally  liable,  and  a  com- 
plaint stating  such  tacts  states  a  cause  of  action.     Winona  Lum.  Co.   v. 

Church  et  al, S.  D ,  62  N.  W.  107;  Mechem  Ag.  sec.  557;  Lewis  v. 

Tilton,  64  la.  220,  19  N.  W.  911;  Davison  v.  Holden,  55  Conn.  103,  10  Atl. 
515;  Herod  v.  Rodman,  16  Ind,  241;  Ash  v.  Guie,  97  Pa.  St.  493;  Heath 
V.  Goslyn,  80  Mo.  310.  Partners — Parties  in  Complaint.  In  an  action  by 
or  against  partners  it  is  not  absolutely  necessary  that  the  title  describe  the 
parties  as  partners  and  give  the  partnership  name,  if  the  facts  appear  in  the 

body  of  the  complaint.     VanBrunt  &  Davis  Co.  v.  Harrigan  et  al, S.  D. 

,  65  N.  W.  421;  nor  is  such  complaint  bad  on  demurrer  as  not  stating 

facts  sufficient  to  constitute  a  cause  of  action.  Id.  Seed  Lien  Foreclosiire — 
Complaint.  In  an  action  to  foreclose  a  statutory  seed  lien  the  complaint 
need  not  allege  that  the  seed  was  sold  to  be  sown  on  a  particular  tract,  it  is 
sufficient  to  alleg-e  tLat  it  was  sown  on  land  "jwned,  used,  occupied,  or  ren- 
ted" by  the  purchaser.  Joslyn  v.  Smith  et  al,  2  N.  D.  53,  49  N.  W.  382. 
Defective  Complaint— Waiver  of  Objection.  Where  the  parties  went  to 
trial  under  a  defective  but  amendable  complaint,  evidence  being  received 
without  objection  supplying  the  defect  in  the  complaint,  it  will  be  pre- 


ERROR   IN   LAW.  119 


sumed  in  this  court  that  the  objection  thereto  was  waived.  Lindsay  v.  Pet- 
tigrew,  (on  rehearing)  5  S.  D.  500,  60  N.  W.  744;  Warder  v.  Ingli,  1  S.  D. 
155,  46  N.  W.  181.  Amendment  Regarded  Made— Waiver,  Where  a 
party  is  allowed  to  amend  his  pleading  on  trial,  and  it  is  regarded  on  trial 
as  actually  amended,  it  is  too  late  on  review  to  object  that  the^leadings  do 
not  present  the  issue  contemplated   by   the  amendment.     Connor   v.   Nat. 

Bank  of  Dak.  et  al,   . . . .  S.  D ,  64  N.  W.  519;  Young  v.  Glascock,  79  Mp. 

574;  Mining  Co.  v.  Noonan,  3,  Dak.  189,  14  N.  W.  426;  Noonan  v.  Mining 
Co.,  121  U.  S.  393,  7  Sup.  Ct.  911.  Attachment  Incidental  to  Main  Case- 
Issue  Untried.  Attachment  proceedings  are  incidental  to  the  main  case, 
and  form  no  part  of  the  pleadings;  and  it  is  error  to  render  judgment  on  the 
pleadings  while  a  material  issue  under  the  pleadings  remains  untried.  Jor- 
dan et  al  V.  Frank,  1  N.  D.  206,  46  N.  W.  171;  Harrison  v.  King,  9  Ohio  St. 
395;  Wap.  Attachm.  81:  Churchill  v.  FuUrin,  8  Ohio  46. 

Stipulation  as  to  Issue— Arbitration.  A  stipulation  made  on  trial  to 
the  court,  as  to  what  the  issue  to  be  tried  is,  and  waiving  objection  to  com- 
plaint, and  that  judgment  may  go  in  favor  of  the  party  found  entitled  there- 
to, simply  limits  issues  to  be  tried,  but  does  not  constitute  submission  to  ar- 
bitration. Randall  et  al  v.  Burke  Tp.  et  al,  4  S.  D.  337,  57  N.  W.  4.  Party 
by  Consent — Amendment.  A  proper  party  to  an  action  was,  during  the 
trial,  made  a  party  by  consent  of  both  parties  then  in  court,  with  the  privi- 
lege to  either  party  to  make  necessary  amendments  to  the  pleadings  at  any 
time  before  judgment.  Before  judgment  plaintiff  filed  an  amended  com- 
plaint against  the  new  party,  and  made  it  a  part  of  the  judgment  roll  in- 
stead of  re-writing  the  complaint  as  amended.  Held,  an  immaterial  irregu- 
larity,    Caledonia  Gold  Min.  Co.  v.  Noonan  et  al,  3  Dak.  189,  14  N.  W.  426, 

( b )     Answer — Defenses. 

Negligence — Agency — Answer  Admitting,  When  the  complaint  al- 
leges the  setting  of  lire  by  defendant's  servants  and  the  answer  sets  up  sub- 
stantially the  same,  the  fact  that  those  setting  the  fire  were  defendant's  ser- 
vants and  acting  within  the  scope  of  their  authority  is  admitted,  and 
evidence  to  prove  the  same  is  not  required,  when  the  general  denial  goes  to 
every  allegation  of  complaint  not  specifically  admitted  or  qualified.  Mattoon 
V.  Fre.,  E.  &  M,  V.  Ry.  Co.,  . . . .  S.  D ,  60  N.  W.  69. 

Claim  and  Delivery — General  Denial — Proof,  Under  a  general 
denial  in  claim  and  delivery  against  the  sherilf,  defendant  may  show 
the  goods  in  controversy  are  the  property  of  a  third  person,  and  that 
his    possession  is    rightful  by   virtue   of    the    writ    of  attachment  levied 

thereon.     Conner    v.    Knott,     S.    D ,     66    N.    W.    461;    Ag'l. 

Works    V.    Young,    S.    D 62    N.    W.    432;    Schulen    berg    v, 

Harriman,  21  Wall.  44;  Bosse  v.  Thomas,  3.  Mo.  App.  472;  Young  v. 
Glasscock,  79  Mo.  574;  Bailey  v.  Swain,  45  Ohio  St.  657,  16  N.  E.  370;  Jan- 
sen  V.  Effey,  10  la.  227;  Snook  v.  Davis,  6  Mich.  156;  Richardson  v,  Steele, 


120  CODE  OP  CIVIL  PROCEDURE. 

9  Neb.  483,  4  N.  W.  83;  Bailey  v.  Bayne,  20  Kan.  657;  Davis  y.  Warfield,  38 
Ind.  461;  Verry  v.  Small,  16  Gray  121;  Sopris  v.  Truax,  1  Colo.  89;  Timp  v, 
"Dockham,  32  Wis.  146;  1  Ency.  PL  &  Prac.  p.  822;  Baylies,  Code  PL,  p.  233; 
Cobbey  Re  pi.  p.  399.  Under  a  general  denial  in  claim  and  delivery,  defend- 
ant may  show  not  only  that  plaintiff  has  no  title  or  right  to  possession,  but, 
by  way  of  establishing  that  fact,  may  prove  title  in  himself  or  a  stranger, 
and  that  some  other  person  than  defendant  was  in  possession  at  commence- 
ment of  the  action.      Pitts  Ag'l  Works  v.  Young, S.  D ,  62  N.  W. 

432;  Timp  v.  Dockham,  32  Wis.  146;  Kennedy  v.  Shaw,  38  Ind.  474;  Griffin 
V.  R.  R.  Co.,  101  N.  Y.  348,  4  N.  E.  740;  Hinchman  v.  Doak,  48  Mich.  168,  12 
N.  W.  39.  Plea  of  Property — Judgment  for  Return.  When  defendant 
pleads  property  in  himself  or  a  stranger,  or  traverses  plaintiff's  right  to 
possession,  in  claim  and  delivery,  if  he  prevails  in  the  action  he  is  entitled 
to  judgment  for  the  return  of  the  property,  or  its  value.     Pitts  Ag'l  Works 

v.  Young,  . . . .  S.  D 62  N.  W.  432;  Quincy  v.  Hall,  1  Pick.  357;  Ingra- 

ham  V.  Hammond,  1  Hill  353;  Hoeffner  v.  Stratton,  57  Me.  ^60;  Pico  v.  Pico, 
56  Cal.  455;  Williams  v.  Kessler,  82  Ind.  184;  Griffin  v.  R.  R  Co.,  101  N.  Y. 
348,  4  N.  E.  740.  Insufficient  Answer— Statute  of  Frauds.  In  a  suit  on  a 
promissory  note,  held,  under  the  facts  stated,  that  the  answer  stated  no  de- 
fense, it  not  appearing  therefrom  that  the  party  for  whose  benefit  defendant 
alleged  it  was  made,  orally  agreed  to  pay  it.  Nat.  Ger.  Am.  Bank  v.  Lang, 
2  N.  D.  66,  49  N.  W.  414;  held,  further,  that  had  such  oral  agreement  been 
made  evidence  to  support  it  was  not  admissible,  as  it  would  vary  the  written 
contract  made.  Nat.  Ger.  Am.  Bank  v.  Lang,  supra;  Comp.  Laws  sec.  3545; 
Thompson  v.  McKee,  5  Dak.  176,  37  N.  W.  367;  Cowel  v.  Anderson,  33  Minn. 
374,  23  N.  W.  542;  Harrison  v.  Morrison,  39  Minn.  319,  40  N.  W.  66;  Eigh- 
mie  V.  Taylor,  98  N.  Y,  288;  Dixon  v.  Harris,  60  la.  727,  13  N.  W.  335;  Allen 
V.  Furbish,  4  Gray  504.  Frivolous  Demvirrer— Bail  Bond — State  as 
Plaintiff.  This  action  was  instituted  in  the  name  of  the  State  as 
plaintiff,  upon  a  bail  bond  given  by  defendants  in  a  criminal  ac- 
tion. A  demurrer  to  the  complaint,  on  the  grounds  that  it  did  not 
appear  that  plaintiff  has  legal  capacity  to  sue,  and  that  the  com- 
plaint does  not  state  facts  sufficient,  etc.,  was  interposed,  which  was, 
on  motion,  stricken  out  as  frivolous,  and  judgment  rendered  for  plaint- 
iff. Held,  that  the  demurrer  was  so  clearly  and  plainly  without  merit  that 
the  court  was  justified  in  treating  it  as  frivolous,  and  rendering  judgment 

upon  the  complaint.      State  v.  Newson  et  al, S.  D ,  66  N.  W.  468; 

sec.  7608,  7611,  4870,  4872  Comp.  Laws;  Hudson  v.  Archer,  4  S.  D.  128,  55  N. 
W.  1099. 

Counterclaim — Survives  to  Administrator.  In  replevin,  an  answer 
setting  up  damages  by  waj'  of  counterclaim,  states  a  cause  of  action  which 
survives  to  defendant's  admicistrator.  O'Neill  v.  Murray,  6  Dak.  107,  50  N, 
W.  619, 


ERROR   IN   LAW.  121 


Illegality  of  Contract  Must  be  Pleaded.  The  defense  of  illegality  in 
the  contract  sued  on  is  not  available  as  a  basis  of  evidence  on  trial  unless 
pleaded.  Illstad  v.  Anderson,  1  N,  D.  167,  49  N.  W.  659;  Cardoze  v.  Swift, 
113  Mass.  250;  R.  R.  Co.  v.  Miller  (Neb.),  21  N.  W.  451.  Informal  Answer 
— Summons  Unnecessary.  An  entry  in  justice's  docket  that  defendant  ap- 
peared and  waived  "service  of  summons,  and  admitted  the  allegations  of  the 
complaint  to  be  true,  and  consented  that  judgment  be  entered  against  him 
by  confession,  in  favor  of  the  plaintiff,"  constitutes  a  sufficient  pleading  by 
defendant,  and  was  prima  facie  evidence  of  jurisdiction  of  person  of  defend- 
ant. Jewett  et  al  v.  Sundback,  sheriff,  5  S.  D.  Ill,  58  N.  W.  20.  When  de- 
fendant appears  and  pleads  no  summons  is  required  to  give  a  justice's  court 
jurisdiction.     Id.;  sec.  6050  Com  p.  Laws. 

( c )     Pleadings — Relevancy. 

Superseded  Complaint — Admissions  Against  Plaintiff.  An  original 
superceded  complaint,  signed  and  verified  by  an  attorney,  is  inadmissible 
as  evidence  against  plaintiff  in  support  of  an  issue  tendered  by  the  answer  to 
his  amended  complaint,  unless  it  is  shown  that  the  recitals  thereof  sought 
to  be  used  as  an  admission  were  inserted  under  his  personal  direction,  or 
have  since  knowingly  received  his  sanction  and  ratification.  Corbett  et  al 
V.  Clough  et  al,  ....  S.  D.  ...  ,  65  N.  W.  1074;  Ponce  v.  McElvey,  51  Cal. 
222;  Vogel  v.  Osborne  (Minn.),  20  N.  W.  129;  Meacham  v.  McKay,  37  Cal.  154. 

Foreign  Law — Pleading.  It  is  error  to  admit  testimony  as  to  what  a 
foreign  law  is  unless  such  law  is  averred  and  wherein  it  differs  from  those 
of  this  state.  Nat.  Ger.  Am.  Bank  v.  Lang,  2  N.  D.  66,  49  N.  W.  414;  and 
the  court  will  presume  the  foreign  law  to  be  same  as  that  of  the  forum,  if 
not  alleged.  Id;  2  Pars.  Bills  &  N.  p.  371;  Cooper  v.  Reaney,  4  Minn.  528, 
(Gil.  413);  Leavenworth  v.  Brockway,  2  Hill  201;  Forsyth  v.  Baxter,  2  Scam. 
9;  Brimhall  v.  Van  Campen,  8  Minn.  13  (Gil.  1);  Pars.  Bills  &  N.  p.  334; 
Whidden  v.  Seelye,  40  Me.  247;  Hoyt  v.  McNeil,  13  Minn.  390  (Gil.  362); 
Legg  v.  Legg,  8  Mass.  99;  Holmesv.  Broughton,  10  Wend.  75.  Copy  Foreign 
Judgment  Roll— Pleading.  In  an  action  on  a  judgment  rendered  in  an- 
other state,  allegations  that  the  court  in  which  the  judgment  was  rendered 
was  one  of  general  jurisdiction,  and  that  the  summons  and  copy  of  complaint 
were  personally  served  on  the  defendant,  are  sufficient  to  admit  in  evidence 
a  certified  copy  of  the  judgment  roll  in  said  action,  although  the  complaint 
in  that  action  failed  to  state  that  the  defendant  corporation  was  doing  busi- 
ness in  that  state  or  had  an  agent  therein  when  the  action  was  commenced. 
Gude'et  al  v.  Dak.  F.  &  M.  Ins.  Co. ,  . . . .  S.  D ,  65  N.  W.  27. 

General  Objection  Under  Complaint — Waiver.  A  general  objection 
to  introduction  of  evidence  under  a  complaint  as  not  stating  facts  constitut- 
ing a  cause  of  action,  will  not  be  considered  on  appeal,  when  evidence  was 
received  without  objection  proving  allegations  wanting  in  the  complaint. 
8i— TP 


122  CODE  OF  CIVIL  PROCEDURE 

Bowman  v.  Eppinger,  1  N.  D.  21,  44  N.  W.  1000;  Thoreson  v.  Harvester 
Works,  29  Minn.  341,  13  N.  W.  156;  Isiiacson  v.  R,  R.  Co.,  27  Minn.  463,  8 
N.  W.  600.  Evidence— Issue.  A  party  cannot  complain  of  the  admission 
of  corajjetent  evidence  to  sustain  an  allegation  of  fact  which  by  his  answer 
he  has  put  in  Issue,  although  such  fact  may  not  appear  to  be  material. 
Gleckler  et  al  v.  Slavens  et  al,  5  S.  D.  364,  59  N.  W.  323.  Conversion— 
Waiving'  Tort — Assxunpsit.  The  owner  of  personal  property,  in  a  suit  for 
its  value,  may  waive  a  tort  on  the  part  of  the  defendant  and  treat  the  con- 
version of  the  property  by  the  defendant  as  a  purchase,  and  recover  in  as- 
sumpsit the  value  of  the  property  at  the  time  of  the  conversion,  with  inter- 
est from  date  thereof.     Anderson  v.   First  Nat.  Bank  of  Grand  Fork  (on 

rehearing) N.  D.  . . . .,  64  N.  W.  114. 

Inference — Refutation  of.  A  plaintiff  may  introduce  evidence  to  re- 
fute an  inference  or  presumption  of  fact  that  might  arise  from  matters  drawn 
from  him  on  cross  examination,  though  the  evidence  has  no  direct  bearing 
upon  the  issues,  and  the  time  of  introduction  of  such  evidence  is  in  discre- 
tion of  the  trial  court.  Branstetter  v.  Morgan,  3  N.  D.  290,  55  N.  W.  758; 
State  v.  McGahey,  3  N.  D.  293,  55  N.  W.  753.  Relevant  Evidence— Waiv- 
er. Where  relevant  evidence  is  received  without  objection,  and  no  motion 
made  to  strike  out,  such  evidence  cannot  be  objected  to  on  appeal  nor  its 
probative  force  questioned,  and  the  objection  is  waived.  Warder,  Bushnell 
&  Glessner  Co.  v.  Ingli,  1  S.  D.  155,  46  N.  W.  181;  Goode  v.  Smith,  13  Cal. 
84;  Janson  v.  Brooks,  29  Cal.  223;  Becker  v.  Becker,  45  la.  239;  Hayne  New 
Tr.  &  App.  sec.  98.  Irrelevant  and  Tending  to  Prejudice.  The  admis- 
sion of  testimony  having  no  bearing  upon  the  issues,  but  which  would  natu- 
rally tend  to  prejudice  the  jury  against  the  parly  objecting,  constitutes  re- 
versible error.  McMillan  et  al  v.  Aitchison,  3  N.  D.  183,  54  N.  W.  1030; 
Jones  v.  Bacon,  19  N.  Y.  Supp.  553;  R.  R.  Co.  v.  Hepner,  (Tex.  Sup.),  18  S. 
W.  441;  Bank  v.  Carson,  30  Neb.  104,  46  N.  W.  276. 

3.     Examination  of  Witnesses. 

See  "Practice-Procedure,"  "Evidence,"  "Findings,"  infra. 

(a).     Direct. 

Permitting  Incompetent  Question.  A  party  cannot  permit  an  in- 
competent or^improper  question  to  be  asked  a  witness,  and,  when  he  finds 
the  answer  prejudicial  to^him,  move  to  strike  out  the  answer,  if  it  is  respon- 
sive to  the  question.  He  should  object  to  the  question,  and, 'if  overruled 
take  his  exception.  Way  v.  Johnson^et  al,  5  S.  D.  237,  58  N.  W.  552.  Must 
Oflfer  to  Prove,  When.  Where  an  objection  to  a  question  put  to  a  witness 
is  sustained,  and  the'competency  of  the  question  is  not  apparent  on  its  face, 
the  party  must  offer  to  prove  the  facts  sought  to  be  elicited  before  he  can 
assign  error  upon"such  ruling.  Halley  v.  Folsom,  1  N.  D.  325,  48  N.  W.  219; 
Mordhorse  v.  Telephone  Co.  (Neb.),  44  N.  W.  469.  Objection— Waiting  for 
Response.     An  objection  to  a  question  after  a  responsive  answer  has  been 


ERROR  IN   LAW.  123 


given,  where  presumptively  counsel  waited  to  ascertain  whether  the  re- 
sponse would  be  favorable,  comes  too  late.  Vermillion  Artesian  Well,  E.  L. 
M.  I.  &  I.  Co.  V.  City  of  Vermillion,. . .  .S.  D. . . .,  61  N.  W.  802;  Green  v. 
Hughitt  School  Twp.,  5  S.  D.  452,  59  N.  W.  224;  Wendt  v.  R.  R.  Co.,  4  S.  D. 
476,  57  N.  W.  226;  Gould  v.  Day,  94  U.  S.  405;  1  Thomp.  Tr.  718  and  cases 
cited.  Not  Responsive— Striking  Out — Sitting  By.  When  a  question  is 
not  objectionable  of  itself,  but  the  answer  is  not  responsive  and  goes  beyond 
the  question  and  contains  improper  or  imcompetent  evidence,  a  motion  to 
strike  out  so  much  as  may  not  be  responsive,  or  as  may  be  improper  or  in- 
competent, may  be  made;  and  the  fact  that  the  party  did  not  object  to  the 
question  does  not  preclude  him  from  moving  to  strike  out.  Wendt  v.  Chi. 
M.  St.  P.  &  O.  Ry.  Co.,  4  S.  D.  476,  57  N.  W.  226;  Gould  v.  Day,  94  U.  S.  405; 
McCabe  v.  Bray  ton,  38  N.  Y.  196;  Ryan  v.  People,  19  Hun  188;  City  of 
Atchison  v.  Rose  (Kan.),  23  Pac.  561;  Thomp.  on  Tr.  sec.  718.  It  is  only 
when  the  question  is  objectionable  and  not  objected  to,  and  the  answer  re- 
sponsive, that  the  rule  applies  that  one  who  sits  by  during  reception  of  in- 
competent or  improper  evidence  without  objection,  thus  taking  chances  of 
advantage  derivable  therefrom,  has  not,  when  he  finds  the  evidence  preju- 
dicial to  his  case,  a  right  to  require  same  to  be  stricken  out.  Wendt  v. 
Chi.  Mil.  St.  P.  &  O.  Ry.  Co.  supra;  Caumont  v.  Morgan  (N.  Y.  App.),  9  N. 
E.  861.  Blind  Preliminary  Question — Offer.  Where  a  question  is  put  on 
direct  examination,  which  is  preliminary,  and  does  not  indicate  whether 
the  answer  will  be  material  or  not  or  would  necessarily  disclose  material 
evidence,  and  where  there  is  no  offer  to  prove  the  facts  sought  to  be  elicited, 
it  is  not  material  error  to  exclude  the  question.     Hanson   v.    Twp.   of  Red 

Rock  et  al, S.  D ,  63  N.  W.  156  (on  rehearing);  Houghton  v.  Clarke, 

80  Cal.  417,  22  Pac.  288.  No  Prejudice  Coxild  Result.  The  allowance  of  a 
question  calling  for  incompetent  testimony,  is  not  reversible  error,  where 
the  answers  and  other  testimony  show  that  no  prejudice  resulted  or  could 

have  resulted  therefrom.     Johnson  v.  Gilmore, S.  D ,  60  N.  W.  1070. 

Leading  Questions — Discretion.  Generally,  the  allowance  or  disallowance 
of  leading  questions  is  in  the  discretion  of  the  court,  and  only  when  they  go 
directly  to  the  substance  of  the  matter  in  controversy  and  give  the  examin- 
ing party  an  improper  advantage,  will  their  allowance  be  held  reversible 
error.     John  A.  Tolman  Co.  v.  Bowerman  et  al,  5  S.  D.  197,  58  N.  W.  568. 

( 6 ).     Cross-Examination. 

Confined  to  Matters  in  Chief.  Although  cross  examination  is  under 
control  and  within  discretion  of  the  trial  court,  it  must  usually  relate  to  a 
material  issue  and  be  confined  to  matters  brought  out  by  examination  in 
chief.  Noyes  et  al  v.  Belding,  sheriflf,  et  al,  5  S.  D.  603,  59  N.  W.  1069. 
Scope  of — Prejudice,  Discredit.  The  cross  examination  of  a  witness  cannot 
go  beyond  subject-matter  of  his  examination  in  chief,  except  to  show  his 
bias  or  prejudice,  or  lay  foundation  for  discrediting  his  evidence  by  showing 


124  Code  of  civil  procedure. 

prior  contradictory  statements.  Wendt  v.  Chi.  Mil.  &  St.  P.  &0.  Ry.  Co., 
4  S.  D.  476,  57  N.  W.  226;  Greonl.  on  Ev.  sec.  447;  Jackson  v.  Water  Co., 
14  Cal.  19;  and  within  these  limits  the  examination  may  touch  every  matter 
testified  to  in  chief,  so  that  his  temper,  leanings,  relation  to  parties  and 
cause,  his  intelligence,  accuracy  of  his  memory,  disposition  to  tell  the  truth, 
means  of  knowledge,  and  his  acquaintance  with  the  subject-matter,  may  be 
fully  interrogated.  Id.  Whole  Conversation.  A  party  on  cross  examin- 
ation, is  only  entitled  to  call  out  the  entire  conversation,  part  of  which  has 
been  given  by  the  witness,  so  far  as  it  relates  to  the  same  subject-matter.  Id.; 
and  is  not  entitled,  under  the  rule  that  he  has  a  right  to  the  whole  conver- 
sation part  of  which  has  been  given,  to  a  conversation  relating  to  another 
subject,  or  which  occurred  at  another  time  or  place.  Wendt  v.  Chicago  M. 
St.  P.  &  O.  Ry.  Co.  4  S.  D.  476,  57  N.  W.  226.  Other  Conversation— In- 
cidental Reference.  When  a  witness  voluntarily  refers  to  a  conversation 
he  had  with  another  party — not  shown  to  be  relevant,— for  the  purpose  of 
fixing  the  time  he  first  had  knowledge  of  the  facts  to  which  he  was  testify- 
ing, the  opposite  party  is  not  entitled  to  the  details  of  that  conversation, 
under  objection.  Uhe  v.  Chi.  Mil.  &  St.  P.  Ry.  Co.,  4  S.  D.  505,  54  N.  W. 
601.  Surprise — Cross  Examining  Own  Witness— Impeachment.  Where  a 
party  is  surprised  by  his  witness's  testimony,  which  not  only  fails  to  prove 
but  disproves  his  case,  he  may  ask  the  witness  whether  he  has  not  made  a 
statement  to  plaintiff  conflicting  with  his  testimony,  and  which  if  true 

would  tend  to  prove  plaintiff's  case.     George  v.  Triplett, N.  D ,63 

N.  W.  891;  Hurley  v.  State,  (Ohio  Sup.),  21  N.  E.  645;  Humble  v.  Shoe- 
maker, 70  la.  223,  30  N.  W.  492;  Hildreth  v.  Aldrich,  15  R.  I.  162, 1  Atl.  249; 
Bullard  v.  Pearsall,  53  N.  Y.  230;  Melhuish  v.  Collier,  15  Adol.  &  E.  (N. 
S.),  878;  State  v.  Sorter,  (Kan.  Sup.),  34  Pac.  1037;  Hickory  v.  U.  S.,  151 
U.  S.  303,  14  Sup.  Ct.  334;  Hall  v.  Ry.  Co.  (la.),  61  N.  W.  150;  1  Whart. 
Ev.  sec.  549;  1  Thomp.  Tr.  sec.  512;  Cox  v.  EayreS,  55  Vt.  24;  Hemingway 
V.  Garth,  51  Ala.  530;  whether,  if  witness  denies  making  such  statement, 
plaintiff  may  be  allowed  to  prove  the  contrary,  in  discretion  of  court,  for 
purpose  of  impeachment,  not  decided.  George  v.  Triplett,  supra.  Interest 
of  Witness.  On  cross  examining  a  witness  it  is  competent  to  question  him 
as  to  his  interest  in  the  subject-matter  to  which  he  has  testified.     Hanson 

V.  Township  of  Red  Rock  et  al,   S.  D ,  63  N.  W.  156  (on  rehearing). 

Attorney's  Compensation — Unskillfulness — Cross  Examination.  In  an  ac- 
tion for  compensation  as  attorney  at  law,  it  is  error  to  sustain  objections  to 
questions  on  cross  examination  of  the  attorney  tending  to  show  his  careless- 
ness or  unskillfulness  and  that  his  services  were  worth  less  than  claimed, 
he  having  testified  to  their  reasonable  value.     Cranmer  v,  Bld'g.  &  Loan 

Ass'n,  of  Dak S.  D ,  61  N.  W.  35;  Caverly  v.  McOwen,  123  Mass. 

574;  Bowman  v.  Tallman,  40  How.  Pr.  1;  Reynolds  v.  McMillan,  63  111.  46;  2 
Greenl.  Ev.  143;  Weeks,  Attys.  at  Law,  302  and  cases  cited. 


ERROR  IN   LAW.  l25 


Opening  Case  By.  The  rule  that  a  party  who  has  not  opened  his  case 
cannot  introduce  it  to  the  jury  by  a  cross  examination  of  witnesses  of  ad- 
verse party,  applies  only  to  such  matters  as  the  examining  party  has 
pleaded  affirmatively  in  defense,  counterclaim,  or  reply,  and  does  not  apply 
when  defendant,  on  cross  examination  of  plaintiff's  witness,  simply  aims  to 
disprove  by  witness  the  case  the  witness  himself  has  made.  Wendt  v.  Chi- 
cago, Mil.  &  St.  P.  &  O.  Ry.  Co.  4  S.  D.  476,  57  N.  W.  226.  Introducing 
Defense  On,  When.  A  defendant  cannot,  on  cross  examination  of  a  witness 
examined  by  plaintiff,  introduce  his  own  affirmative  defense,  against  objec- 
tion, unless  witness  has  in  his  examination  in  chief  testified  to  matters  con- 
cerning which  defendant  seeks  to  cross  examine  him.     First  Nat.  Bank  of 

Pierre  v.    Smith  et  al,  (on   rehearing),     S.    D ,    65  N.  W.  439; 

Wendt  V.  Ry  Co.,  4  S.  D.  476,  57  N.  W.  226. 

(c).     Re- Direct 

Same  Scope  as  in  Chief.  It  is  within  the  sound  discretion  of  the  court 
to  allow  any  question  to  be  asked  on  re-direct  examination  that  was  proper 

on  examination  in  chief.     Baird  et  al  v.  Gleckler, S.  D ,  64  N.  W. 

119;  Hemmens  v.  Bently,  32  Mich.  89.  Commission  on  Realty  Sale — 
Agency — Oflfer  of  Proof.  In  an  action  to  recover  commission  on  sale  of 
realty,  a  plaintiff  having  testified  to  the  sale  and  to  an  oral  agreement  by 
defendant  to  pay  commission  if  sale  was  consumated,  defendant's  counsel  of- 
fered to  prove  by  defendant  on  re-direct  examination  that  the  sale  was  not 
consummated,  that  plaintiffs  were  not  authorized  to  sell,  and  never  had  any- 
thing to  do  with  sale  of  same;  held,  error  to  deny  the  offer,  on  the  ground 
that  the  question  was  incompetent,  irrelevant  and  immaterial.  Baird  et  al 
V.  Gleckler S.  D ,  64  N.  W.  119. 

4.     Evidence. 

(a)     Records,  Writings,  Depositions. 

Copies  of  Public  Records — Certificate.  In  the  absence  of  a  statute 
making  a  certificate  of  an  officer  evidence  as  to  the  legal  effect  of  copies  of 
judicial  and  other  public  records,  such  certificate  is  incompetent.    (Dictum.) 

Billingley  et  al  v.  Hiles  et  al,  . . . .  S.  D ,  61  N.  W.  687;    Meyer  v.  School 

Dist.,  4  S.  D.  420,  57  N.  W.  70;  Tessman  v.  Supreme  Commandery  (Mich.), 
61  N.  W.  261;  Lansing  v.  Russell,  3  Barb.  Ch.  325.  Record  of  Foreign 
Garnishment — Admission.  An  exemplified  copy  of  record  of  garnishee  pro- 
ceedings against  defendant  in  an  action  in  Minnesota,  in  which  appeared  de- 
fendant's disclosure  therein,  is  competent  evidence  that  such  disclosure  was 
made,  and  admissible  against  defendant  as  an  admission  by  its  officer  in  the 

course  of  his  duty.     Purcellv.  St.  Paul  F.  &  M.  Ins.  Co., N.  D ,64 

N.  W.  943. 

Best  Evidence  Only  Receivable.  As  a  rule,  in  absence  of  prelimi- 
nary foundation  proof,   no  evidence  should  be  received  which  presupposes 


126  CODE  OF  CIVIL  PROCEDURE. 

better  evidence  in  the  party's  possession  or  control,  or  within  reach.  Noyea 
et  al  V.  Belding,  sheriff,  et  al,  5  S.  D.  603,  59  N.  W.  1069;  R.  R.  Co.  v.  Strick- 
land, 80  Ga.  776,  6  S.  E.  27;  Crane  v.  Andrews,  6  Colo.  353;  McPhaul  v.  Laps- 
ley,  20  Wall.  264;  Clifton  v.  U.  S.,  4  How.  242.  Law  of  the  Case— Record. 
A  question  decided  by  the  Supreme  Court  of  the  late  territory  becomes  the 
law  of  the  case  in  all  stages,  and  will  not  ordinarily  be  reversed  upon  a  sec- 
ond appeal  when  the  facts  are  substantially  the  same.  Plymouth  Co.  Bank 
V.  Gilman,  3  S.  D.  170,  52  N.  W.  869;  and  the  record  on  former  appeal  may 
be  examined  on  this  appeal  as  to  the  facts  and  questions  formerly  before  the 
appellate  court.  Id;  St.  Croix  Lum.  Co.  v.  Mitchell  et  al,  4  S.  D.  487,  57  N. 
W.  236;  McKinley  v.  Tuttle,  42  Cal.  671;  Donner  v.  Palmer,  51  Cal.  629; 
Russell  v,  Harris,  44  Cal.  489;  Page  v.  Fowler,  37  Cal.  100;  Yates  v.  Smith, 
40  Cal.  662;  Davidson  v.  Dallas,  15  Cal.  75;  Smith  v.  City  of  San  Luis  Obispo 
(Cal.),  34  Pac.  830;  Little  v,  McAdaras,  38  Mo.  App.  187;  sees.  1-4,  art.  26, 
Const.  S.  D.  Ruling  Before  Former  Judge.  Evidence  is  properly  admis- 
sible before  a  State  Circuit  Judge  who  succeeded  a  Territorial  Judge,  to 
show  that  the  former  judge  had  overruled  a  motion  for  a  new  trial.  Jeansch 
V.  Lewis  et  al,  1  S.  D.  609,  48  N.  W.  128.  Proof  of  Reference.  On  appeal, 
in  the  absence  of  record  evidence  showing  that  an  order  of  reference  was 
made  pursuant  to  sec.  1,  ch.  112,  Laws  1889,  this  court  will  presume,  in  sup- 
port of  the  judgment,  that  such  order  was  made.  Kent  v.  Dak.  F.  &  M.  Ins. 
Co.,  2  S.  D.  300,  50  N.  W.  85;  and  where  the  judgment  recites  that  the  issues 
were  referred,  it  will  be  taken  as  true  and  based  upon  sufficient  evidence,  in 
absence  of  countervailing  record  evidence.     Id. 

Docket  Entries — Justice's  Jurisdiction.  Entries  made  in  a  docket  by 
a  J.  P.  under  sec.  6123  Comp.  Laws,  are,  by  sec.  6124,  made  prima  facie  evi- 
dence of  the  facts  so  stated,  including  time  when  parties  appeared,  and  a 
concise  statement  of  material  parts  of  pleadings;  and  an  entry  that  plaint- 
iffs filed  complaint  claiming  defendant  was  indebted  to  them  in  the  sum  of 
$48  for  goods,  wares,  and  merchandise  sold  by  plaintiffs  to  defendant  at  his 
special  instance  and  request,  is  prima  facie  evidence  of  jurisdiction  of  the 
justice's  court  over  the  subject-matter.  Jewett  et  al  v.  Sundback,  sheriff,  5 
S.  D.  Ill,  58  N.  W.  20;  Black,  Judgm.  sec.  287.  If  records  show  affirma- 
matively  jurisdiction  of  justice's  court  over  subject-matter  and  person  of  de- 
fendant, the  same  presumptions  are  indulged  in  favor  of  regularity  of  pro- 
ceedings as  are  extended  to  superior  courts,  and  they  cannot  be  collaterally 
impeached  for  errors  or  irregularities.  Jewett  et  al  v.  Sundback,  sheriff, 
supra.  Justice's  Docket — Recovery  of  Land.  In  an  action  to  recover  land 
and  damages  for  withholding  it,  the  court,  in  excluding  from  the  jury  the 
record  in  justice's  court  upon  which  a  writ  of  execution  was  issued  and 
plaintiff  ousted  from  the  land,  did  not  err  in  holding  that  the  justice  had  no 
jurisdiction.  Hegar  et  al  v.  DeGroat,  3  N.  D.  354,  56  N.  W.  150.  Value- 
Book  Memoranda— Testimony  From.     The  testimony  of  a    witness  whose 


ERROR   IN   LAW.  127 


knowledge  of  value  of  an  article  is  derived  from  inspection  of  a  day  book 
memoranda  not  connected  with  the  action,  it  not  being-  shown  by  whom  or 
when  the  entry  was  made,  or  that  the  party  making  it  had  any  knowledge 
of  market  value  of  the  articles,  is  incompetent  to  establish  its  value.  Keith 
V.  Haggert,  2  N.  D.  18,  48  N.  W.  432.  Extension  of  Note— Evidence  of  Con- 
sideration. The  writing,  "Extended  to  December  1st,  1891,"  placed  by  the 
payee  thereof  on  a  promissory  note,  pursuant  to  an  agreement  with  the  ma- 
ker to  extend  the  time  of  payment,  is  a  written  extension,  and  presumptive 
evidence  of  a  consideration,  under  subd.  2  of  sec.  3538  Comp.  Laws.    Corbett 

et  al  V.  Clough  et  al, S.  D ,  65  N.  W.   1074.     Instrument— For  One 

Purpose,  In  for  All.  Where  one  party  introduces  a  written  instrument  in 
evidence,  without  any  limitation  of  the  purpose  for  which  it  is  introduced,  it 
is  in  evidence  for  all  purposes,  and  the  adverse  party  may  avail  himself  of  it 
in  support  of  his  pleading,  the  same  as  though  formally  offered  in  evidence 

by  himself.     Dielmann  v.  Citizen's  Nat.  Bank  of  Madison,  . . .  .S.  D ,  66 

N.  W.  311;  Esshom  v.  Hotel  Co S.  D ,  63  N.  W.  229. 

Depositions — Notice  not  Stating  Hour.  A  notice  of  taking  a  depo- 
sition, though  not  stating  the  hour  at  which  the  taking  will  commence,  but 
which  states  it  will  be  taken  between  certain  specified  hours,  is  sufficient. 
J.  I.  Case  T.  M.  Co.  v.  Pederson,  . . . .  S.  D ,  60  N.  W.  747;  1  Wade  No- 
tice, 1230;  Weeks  Dep.  251;  Walk.  Am.  Law  674;  Scharfenburg  v.  Bishop, 
35  la.  60;  King  v.  State,  15  Ind.  64;  Wadingham  v.  Gamble,  4  Mo.  465; 
Sweitzer  v.  Meese,  6  Vin.  (Wis.),  500.  Suppression  of  Deposition — Loca- 
tion of  Notary — Certificate.  It  is  not  error  to  refuse  to  suppress  a  deposi- 
tion taken  in  another  state  on  notice,  because  the  notice  did  not  locate  the 
office  of  the  notary  before  whom  it  was  to  be  taken,  by  street  and  number,'no 
prejudice  appearing.  Moore  v.  Booker  et  al,  4  N.  D.  543,  62  N.W.  607;  Brit- 
ton  v.  Berry,  20  Neb.  325,  30  N.  W.  254;  nor  is  it  error  to  refuse  to  suppress 
a  deposition  because  the  certificate  does  not  show  that  the  notary  was  uot  a 
relative  of  either  party,  or  otherwise  interested  in  the  action;  such  fact,  if 
it  exists,  must  be  made  to  appear  affirmatively;  our  statute  does  not  require 
the  certificate  to  speak  upon  that  point.     Moore  v.  Booker  et  al,  supra. 

(6).     Parol  Evidence. 

Parol  Varying  Instrument — Between  Parties  Only.  The  rule  that 
parol  evidence  is  inadmissible  to  contradict,  change,  or  vary  the  terms  of  a 
written  instrument  applies  only  to  parties  thereto  or  those  claiming  under 
it,  and  not  to  creditors  claiming  advei'sely  to  it.  Jewett  et  al  v.  Sundback, 
Sheriff,  5  S.  D.  Ill,  58  N.  W.  20;  Potts  v.  Hart,  99  N.  Y.  168,  1  N.  E. 
605.  Bill  of  Sale  as  Mortgage.  Defendant  can  show  by  parol  evidence 
that  the  bill  of  sale  under  which  plaintiff  claims  right  of  posession  of  the 
property,  was  intended  as  a  mortgage.  O'Neil  v.  Murray,  6  Dak.  107,  50 
N.  W.  619.  Receipt  as  Contra:ct.  Parol  evidence  is  admissible  to  vary  the 
terms  o!  a  writing  in  the  form  of  a  receipt,   to  show  that  the  same  constl' 


128  CODE  OP  CIVIL  PROCEDURE. 

tuted  a  contract;  but  only  as  to  that  part  which  is  a  mere  receipt.  Prairie 
School  Tp.  V.  Haseleu  et  al,  3  N.  D.  328,  65  N.  W.  938;  7  Am.  &  Eng. 
Ency.  Law,  p.  95;  Morris  v.  R.  R.  Co.,  21  Minn.  91;  Burke  v.  Ray,  40  Minn. 
34, 41  N.  W.  240.  Note— Witness— Parol  Evidence.  Where  a  promissory 
note  is  signed  by  one  of  two  signers  at  the  lower  left  hand  corner,  parol  is 
admissible  to  show  that  such  signature  was  that  of  a  witness  and  not  that  of 

a  maker.     Aultman  &  Taylor  Co.  v.  Gunderson  et  al, S.  D   ,60  N. 

W.  859;  Garrison  v.  Owens,  1  Pin.  (Wis.),  471;  Steininger  v.  Hoch's  Ex'r. 
39  Pa.  St.  263;  Camden  v.  McCoy,  3  Scam.  437.  Coal  Contract— Parol. 
In  an  action  on  contract  for  the  price  of  coal  sold,  lield,  under  the  fact  stated, 
that  parol  evidence  to  show  the  amount  of  coal  to  be  taken  was  the  amount 
defendant  used  the  season  before,  instead  of  one-half  to  two-thirds,  as  stated 
in  defendant's  letter,  was  inadmissible,  as  varying  the  terms  of  the  written 
contract.  N.  W.  Fuel  Co.  v.  Bruns,  1  N.  D.  137,  45  N.  W.699.  Notes  Exe- 
cuted on  Condition — Parol  Proof.  In  suit  upon  notes  claimed  by  defendant 
to  have  been  executed  upon  express  condition  that  they  shall  not  be  deemed 
hid  notes,  or  as  delivered,  unless  executed  by  another,  evidence  tending  to 
prove  the  condition  and  that  it  had  never  been  complied  with,  is  competent 
and  not  within  the  rule  of  inadmissibility  to  contradict  or  vary   terms   of 

written  instrument.     McCormick  Har.  M.  Co.  v.  Faulkner, ,  S.  D , 

64  N.  W.  163;  Jenkinson  v.  City  of  Vermillion,  3  S.  D.  238,  52  N.  W.  1066; 
Johnson  v.  Barnside,  3  S.  D.  230,  52  N.  W.  1057;  Burson  v.  Huntington,  21 
Mich.  415;  Whitaker  v.  Salisbury,  15  Pick.  534;  Pawling  v.  U.  S.,  4 
Cranch  219;  Wilson  v.  Powers,  131  Mass.  539;  Ware  v.  Allen,  128,  U.  S. 
690,  9  Sup.  Ct.  174.  Agency — Guaranty  Contract — Prior  Parol  State- 
xxvents.  Where  an  agency  contract  was  guaranteed,  a  general  agent  of  the 
corporation  appointing  the  agent  having  made  the  contract  of  guaranty  for 
the  corporation,  the  agency  contract  stating  on  its  face  that  the  corporation 
would  not  be  bound  thereby  until  it  was  accepted  and  approved  at  the  home 
ofBce,  held,  that  the  guarantors  could  not  enforce  against  the  corporation, 
certain  prior  parol  statements  of  the  general  agent,  not  incorporated  in  the 
written  contract  subsequently  approved  by  the  corporation.  William  Peer- 
ing &  Co.  V.   Russell,  ....N.  D ,  65,  N.  W.  691.     Held,  further,  that 

when  the  guaranty  contract  recited  that  the  liability  of  the  guarantors  could 
not  be  modified  or  cancelled,  except  as  therein  specified,  the  guarantors  could 
not  insist  upon  a  modification  of  such  liability  on  other  and  excluded  grounds. 
Id.  Right  ofWay — Oral  Evidence.  In  an  action  for  damages,  no  question  of 
owneVship  of  the  railroad  in  question  being  involved,  held,  oral  evidence 
was  proper  to  show  the  width  of  right  of  way.  Gram  v.  No.  Pac.  Ry.  Co.  1 
N.  D.  252,  46  N.  W.  972.  Mutual  Mistake  -Witness'  Understanding.  In 
order  to  admit  parol  evidence  to  contradict  terms  of  written  contract,  on 
ground  of  mistake,  it  must  clearly  appear  that  such  mistake  was  mutual. 
Hence,  When  a  witness'  testimony  showed  he  had  talked  with  but  one  party 


ERROR  IN  LAW.  129 


to  the  contract,  it  was  not  error  to  refuse  to  let  him  state  his  understand- 
ing of  what  the  contract  between  the  parties  was,  for  the  purpose  of  estab- 
lishing a  mistake  in  the  written  contract.  William  Deerin^  &  Co.  v.  Rus- 
sell et  al,  . . . .  N.  D ,  65  N.  W.  691. 

(c).     Res  Geste. 

Res  Geste — Statement  of  Agent.  In  an  action  against  an  elevator 
company  for  the  value  of  grain  alleged  to  have  been  stolen  from  plaintiff  by 
a  third  party,  lield,  under  the  facts  stated,  that  a  statement  of  defendant's 
agent  as  to  receipt  of  the  grain  by  defendant  and  issuance  of  tickets  therefor 
to  the  third  party,  were  inadmissible,  not  being  part  of  the  res  gestae,  and 
not  within  the  authority  of  the  agent.  Short  v.  No.  Pac.  Elevator  Co.,  1  N. 
D.  159,  45  N.  W.  706;  1  Greenl.  Ev.  sec.  113;  Story  on  Ag.  sec.  134;  Packett 
Co.  v.  Clough,  20  Wall.  540;  R.  R.  Co.  v.  O'Brien,  119  U.S.  99,  7  Sup.  Ct. 
Rep.  118;  Mechem  Ag.  sec.  714;  Randall  v.  Telegraph  Co.,  54  Wis.  140,  11 
N.  W.  419;  First  Nat.  Bank  v.  Ocean  Nat.  Bank,  60  N.  Y.  278;  Waldele  v. 
Ry.  Co.,  95  N.  Y.  274;  Lund  v.  Pyngsborough,  9  Cush.  36;  McDermott  v. 
Ry.  Co.,  73  Mo.  516:  Durkee  v.  R,  R.  Co.,  11  Pac.  130;  Bank  v.  North,  6  Dak. 
136,  41  N.  W.  736;  People  v.  Vernon,  35  Cal.  49;  O'Conner  v.  Ry.  Co.,  27 
Minn.  166,  6  N.  W.  481;  Keyser  v.  Ry.  Co.,  33  N.  W.  867;  Pinkerton  v.  Ry. 
Co.,  7  S.  W.  805;  Cleveland  v.  Newsom,  45  Mich.  62,  7  N.  W.  222.  Exclam- 
ations of  Pain — Res  Geste.  Exclamations  and  expressions  of  present  pain 
may  be  proved  by  any  one  who  hears  them,  although  made  subsequently  to 
the  injury.  Bennett  v.  No.  Pac.  R.  Co.,  2  N.  D.  142,  49  N.  W.  408;  R.R.  Co. 
V.  Newell,  104  Ind.  254,  3  N.  E.  836  and  cases  cited;  State  v.  Gedicke,  43  N. 
J.  Law  86;  Eckles  v.  Bates,  26  Ala.  655;  Yeatman  v.  Hart,  6  Humph. (Tenn.), 
374;  Hagenlocher  v.  R.  R.  Co.,  99  N.  Y.  136,  1  N.  E.  536.  Transaction  with 
Administrator — Testimony  to  Pajrment.  A  party  to  an  action  is  not  pro- 
hibited by  sec.  5260  Comp.  Laws,  from  testifying  in  his  own  behalf  to  a  per- 
sonal transaction  (payment)  had  with  a  deceased  administrator,  as  against 
the  latter's  successor  suing  to  enforce  a  claim  which  the  defendant  testifies 
he  paid  to  the  deceased  administrator  as  such.  St.  John  v.  Lofland,  . ...  .N. 
D ,  64  N.  W.  930;  Voss  v.  King  (W.  Na.),  10  S.  E.  402;  Palmateer  v.  Til- 
ton  (N.  J.  Err.  «&  App.),  5  Atl.  105;  Jones  v.  Smart,  1  Termr.  Rep.  44;  Was- 
sell  V.  Armstrong,  35  Ark.  247;  Lobdell  v.  Lobdell,  36  N.  Y.  327;  Clapp  v. 
Hull,  29  Atl.  687;  Wood  v.  Stewart,  (Ind.  App.),  36  N.  E.  658;  Ass'n  v.  New- 
man (Tex.  Civ.  App.),  25  S.  W.  461;  Hay  ward  v.  French,  12  Gray  453;  Bel- 
lows V.  Litchfield  (la.),  48  N.  W.  1063;  Johnson  v.  Johnson,  52  la.  590,  3  N. 
W.  661;  Sprague  v.  Bond  (N.  C),  18  S.  E.  701;  Hodge  v.  Correll,  44  N.  J. 
Law  456;  Crimmins  v.  Crimmins,  (N.  J.  Ch.),  10  Atl.  800;  Goulding  v.  Hor- 
bury,  85  Me.  227,  27  Atl.  127;  Newton  v.  Newton,  77  Tex.  508,  14  S.  W.  157; 
Roberts  v.  Yarboro,  41  Tex,  451;  McBrien  v.  Martin,  87  Tenn.  13,  9  S.  W, 
,  201. 

9— T  P 


130  CODE  OF  CIVIL  PROCEDURE. 

(d).     Communications. 

Agent^Communications  Explaining  Instructions.  When  one  acts 
on  instructions  given  after  communications  on  the  subject  have  passed  be- 
tween him  and  his  principal,  such  commumcations  are  admissible  to  explain 
the  instructions.     Anderson  v.  First  Nat.  Bank  of  Grand  Forks,  4  N.  D.  183, 

59  N.  W.  1029.  Husband  and  Wife  -Communications  Between.  The  le- 
gal effect  of  sec.  6260  Com  p.  Laws,  is  that  so  long  as  the  relation  of  husband 
and  wife  exists  neither  can  testify  for  or  against  the  other  except  by  con- 
sent, nor  after  such  relation  is  terminated,  as  to  communications  between 

them  while  such  relation  existed.      Clark  v.  Evans  et  al, S.  D ,60 

N.  W.  862.  Confidential  Communications— Attorney  Drawing  Papers. 
An  attorney  employed  to  draw  a  deed  and  bill  of  sale  to  be  executed  by  his 
employer,  may  testify,  on  behalf  of  the  other  party  to  the  instruments,  as  to 
what  was  said  between  the  parties,  and  between  them  and  himself,  to  show 
the  bill  of  sale  was  intended  as  a  mortgage.    O'Neill  v.  Murray,  6  Dak.  107, 

60  N.  W.  619. 

(e).     Expert,  Opinion  Evidence,  Etc. 

Expert  Testimony — Object  on  Street — Fright.  Whether  or  not  a 
given  object,  standing  on  the  street,  is  calculated  to  frighten  horses  of  ordi- 
nary gentleness,  is  not  a  question  for  expert  testimony.  Ouverson  v.  City 
of  Grafton,  ....  N.  D ,  66  N.  W.  676;  Abb.  Tr.  Brief,  54.  Expert- 
Matters  Requiring  No  Skill.  A  witness  need  not  qualify  as  an  expert  in 
order  to  testify  to  matters  requiring  no  special  knowledge  nor  peculiar  skill. 

Vermillion  Artesian  Well,  E.  L.  M.  I.  &.  I.  Co.  v.  City  of  Vermillion,   

S.  D 61   N.  W.  802.     Water  Co.  v.  Standart,  (Cal.),  32  Pac.  532;  Com. 

V.  Sturtivant,  117  Mass.  122.  State  v.  Pipe,  49  N.  H.  399;  Baldwin  v.  Park- 
er, 99  Mass.  79;  1  Greenl.  Ev.  529.  Opinion— Observations— Belief.  Upon 
a  question  of  identity  witness  may  state  his  opinion  based  upon  observations, 
but  may  not^ive  his  belief  resulting  from  facts  and  circumstances  which 
can  be  intelligently  considered  by  the  jury.  Smith  v.  No.  Pac.  R.  Co.,  3 
N.  D.  555,  58  N.  W.  345;  1  Greenl.  Ev.  sec.  440;  Hatheway  v.  Brown,  22 
Minn.  214;  Williams  v.  Clark,  (Minn.),  49  N.  W.  398;  People  v.  N.  Y.  Hos- 
pital, 3  Abb.  N.  C.  (notes  pp.  234-5.)  Value— Opinion  Evidence.  Opinion 
evidence  by  one  who  testifies  that  at  a  time  and  place  he  was  a  general 
dealer  in  fat  stock,  is  competent  as  to  value  of  stock.     Johnson  v.  Gilmore, 

•  ■.-  S.  D ,  60  N.  W.   1070;  Enos  v.  Ins.  Co.  4,  S.  D.  639,  57  N.  W.  924; 

Gleckler  V.  Slavens,  5  S.  D.  364,  59  N.  W.  323;  Whitney  v.  Thatcher,  117 
Mass.  527;  Ins.  Co.  v.  Wharton,  28  Mich.  173.  Opinion— "Water  Pressure. 
It  is  not  error  to  sustain  an  objection  calling  for  opinion  of  witness  as  to 
amount  of  water  discharged  "under  a  pressure  such  as  was  on  the  pumps  at 
the  time  this  test  was  made,"  it  not  appearing  that  the  valve  in  question 
was  open  when  a  test  was  made,  nor  that  witness  knew  the  pressure  under 
which  the  pumps  were  working.     Vermillion  Artesian  Well,  E,  L.  M.  I  &  I. 


Error  in  law.  131 


Co.  V.  City  of  Vermillion,    S.  D ,  61   N.   W.   802.     Ownership  — 

"Family  Talk."  In  an  action  between  a  son  and  a  third  person  over  the 
ownership  of  personal  property  claimed  by  the  son,  the  "talk  and  conversa- 
tion of  the  family"  that  the  son  was  owner  is  heresay  and  inadmissible. 

Stevens  v.  Wm.  Deering  &  Co., S.  D ,  60  N.  W.  739;  so  also  is  the 

statement  of  the  plaintiff  made  to  neighbors,  that  he  was  the  owner.  Id. 
Attorney's  Services — Testimony  of  Foreign  Attorney.  It  is  not  error  to 
allow  an  attorney  to  testify  to  the  value  of  legal  services  with  which  he  Is 
familiar,  though  he  has  not  practiced  in  the  county  or  state  where  the  ser- 
vices were  rendered.     Frye  et  al  v.  Ferguson, S.  D ,  61  N.  W.  161; 

Enos  V.  Ins.  Co.,  4  S.  D.  639,  57  N.  W.  924;  Gleckler  v.  Slavens,    ....  S.  D. 
. . .,  59  N.  W.  323;  Johnson  v.  Gilmore,   S.  D ,  60  N.  W,  1070. 

(f).     Objections  to,   Waiuer  of— Estoppel. 

Specific  Objection  "Waives  Others.  A  party  objecting  to  evidence  on 
a  specific  ground  waives  all  other  grounds.  Bailey  v.  Chi.  Mil.  &  St.  P, 
R.  Co.,  3  S.  D.  531,  54  N.  W.  596;  State  v.  Leehman,  2  S.  D.  171,  49  N.  W. 
3  and  cases  cited.  Where  the  record  is  not  sufficiently  full  for  examination 
of  the  main  questions  of  error  assigned,  appellant  will  be  confined  to  such 
assignments  of  error  as  arise  upon  the  record.  Ellis  v.  Wait,  4  S.  D.  31, 
54  X.  W.  925.  Proof  of  "Wsdver  of  Notice  of  Loss — Tardy  Objection — 
Pleading-.  When  evidence  is  offered  to  a  fact  from  which  the  law  infers 
waiver  of  notice  of  loss,  no  objection  to  its  competency  being  made,  it  is  too 
late  in  this  court  to  raise  the  point  that  the  complaint  alleges  a  perform- 
ance relative  to  notice  of  loss,  instead  of  waiver.  Purcell  v.  St.  P.  F.  &  M. 
Ins,  Co.,  (on  rehearing), N.  D ,64  N.  W.  943.  Insufficient  Objec- 
tion. An  objection  to  the  admission  of  copies  of  articles  of  incorporation  as 
"incompetent,  immaterial  and  irrelevant,"  is  not  sufficient,  on  appeal,  to 
raise  the  objection  that  such  copies  were  not  properly  certified  and  authen- 
ticated. Caledonia  Gold  Min.  Co.  v.  Noonan  et  al,  3  Dak.  189,  14  N.  W. 
426;  3  Wait's  Pr.  206;  Id.  230;  Tooley  v.  Bacon,  70  N.  Y.  37;  Levin  v.  Rus- 
sell, 42  N.  Y.  261;  Williams  v.  Sergeant,  4  N.  Y.  481;  Belk  v.  Meagher,  104 
U.  S.  288;  Braly  v.  Reese,  51  Cal.  447;  Waterville  Mfg.  Co.  v.  Brown,  9 
How.  Pr.  27;  Knapp  v.  Schnider,  24  Wis.  70;  City  of  Ripon  v.  Bettel,  30 
Wis.  614;  Columbia  Del.  Bridge  Co.  v.  Geisse,  38  N.  J.  Law  39;  Burton  v. 
Driggs,  20  Wall.  12-5:  Merrill  v.  Seaman,  6  N.  Y.  168;  Coon  v.  L.  &  N.  R.  R. 
5  N.  Y.  492.  Objections  to  Order  or  Sufficiency — Not  Good.  Objections 
to  evidence  that  go  simply  to  the  order,  or  sufficiency,  of  proof,  are  proper- 
ly overruled.  Bowman  v.  Eppinger,  1  N.  D.  21,  44  Northwest  1000; 
Commissioners  v.  Dam,  107  Mass.  210;  Hutchins  v.  Kimmell,  31  Michi- 
gan 126.  Preliminary  Collateral  Question— Offer  Proot  A  ruling- 
sustaining  an  objection  to  a  preliminary  question  on  a  collateral  and 
apparently  immaterial  subject,  must,  in  order  to  receive  attention  on  ap- 
peal, be  followed  by  an  ofifer  to  prove  the  facts  sought  to  be  thereby  elici- 


132  CODE  OF  CIVIL  PROCEDURE 

ted.    Tootle  et  al  v.  Petrie,  sheriff,  ....  S.  D ,65  N.  W.  43;  Hanson  v. 

Tp.  of  Red  Rock,  . . . .  S.  D ,  63  N.  W,  156.    Notice  of  Loss  -Proof  of 

Loss  Is— Waiver.  Proofs  of  loss  constitute  notice  of  loss.  If  furnished  too 
late  to  constitute  notice  of  loss  under  the  policy,  the  company  waives  time, 
under  sec.  4179  Comp.  Laws,  hy  omitting  to  promptly  object  to  them  on 

that  ground.    Purcell  v.  St.  P.  P.  &  M.  Ins.   Co.,  (on  rehearing) N.  D. 

....,  64  N.  W.  i»43;  Weed  v.  Ins.  Co.  (N.  Y.  App.)  31  N.  E.  231;  Johnson  v. 
Ins.  Co.,  1  N.  D.  167,  45  N.  W.  799.  Referee— Objection  to  Evidence— Re- 
newal of.  Defendant,  who  objected  to  any  rulings  being  made  by  referee, 
cannot  raise  the  question  whether  evidence  admitted  by  the  referee,  not  ex- 
cepted to,  should  have  been  received,  the  objection  not  being  renewed  on 
application  for  judgment  on  the  report,  and  no  exceptions  being  taken  on  the 
application.  Illstad  v.  Anderson,  1  N.  D.  167,  49  N.  W.  659.  Sess.  Laws 
1869,  chap.  112,  sec.  3. 

Estoppel— Competency.  Where  a  party  introduces  a  written  instru- 
ment in  evidence  she  thus  asserts  its  competency,  and  cannot  afterwards,  to 
avoid  a  benefit  claimed  by  the  opposite  party  under  it,  object  that  there  was 
no  proof  of  its  execution  and  delivery.  Evenson  v.  Webster,  (on  rehearing), 
5  S.  D.  266,  58  N.  W.  669.  Agreement  as  to  Proof.  When  parties  agree 
as  to  what  shall  constitute  proof  of  a  fact,  they  take  such  question  out  from 
under  the  ordinary  rules  of  evidence,  and  the  fact  may  be  established  in  the 
manner  agreed  upon.  John  A.  Tolmann  Co.  v.  Bowerman  et  al,  5  S.  D.  197, 
58  N.  W.  569. 

5.     Instructions. 

See,  decisions  under  "Instructions,  how  Given  and  Refused,"  sec.  5048, 
Comp.  Laws,  sec.  5432,  Rev.  Codes,  N.  D.;  also,  "Instructions,"  under  sub- 
division 6,  supra,  and  "Practice — Procedure,"  infra. 

Good  as  a  Whole.  A  verdict  will  not  be  set  aside  because  detached 
portions  of  the  charge,  stated  separately,  do  not  correctly  state  the  law, 
where  it  clearly  appears  that,  taken  as  a  whole,  the  charge  correctly  stated 
the  law  of  the  case,  and  the  jury  could  not  have  been  misled.  State  v.  Bren- 
nan,  2  S.  D.  384,  50  N.  W.  625.  Erroneous  Instruction — Harmless  Error. 
While  the  giving  of  an  erroneous  instruction  raises  a  presumption  of  preju- 
dice, yet  a  case  will  not  be  reversed  therefor  where  ths  record  clearly  shows 
that  prejudice  could  not  have  resulted.  Nat.  Bank  of  No.  Dak.  v.  Lemke,  3 
N.  D.  154,  54  N.  W.  919;  McKay  v.  Leonard,  17  la.  669;  Hook,  adm'r,  v. 
Craghead,  35  Mo.  380;  Freeman  v.  Rankins,  21  Me.  446:  Hayne  New  Tr. 
sec.  287  and  cases  cited.  Oral  Charge— No  Objection.  Error  cannot  be  as- 
signed upon  an  oral  charge  to  the  jury,  made  without  objection  or  request 
that  they  be  instructed  in  writing,  the  charge  being  taken  down  by  the  sten- 
ographer.   Frye  et  al  v.  Ferguson, S.  D ,  61  N.  W.  161;  Stamm  v. 

Coates,  4  Dak.  69,  22  N.  W.  593;  Head  v.  Langworthy,  15  la.  236;  Thomp.  on 
Tr.  sec.  2378.     Omitted  Point — Request.    Nor  can  a  party  assign  error  upon 


i 


ERROR  IN   LAW.  133 


an  omission  of  the  court  to  instruct  upon  a  point  in  respect  to  which  no  in- 
struction was  asked.  Frye  et  al  v.  Ferguson,  supra;  Haynes  NewTr.  &  App. 
sec.  120;  2  Am.  &  Eng.  Ency.  of  Law,  p.  258  and  cases  cited.  Assuming 
Facts.  An  instruction  is  properly  refused  which  assumes  and  is  based  upon 
a  supposed  fact,  which  the  evidence  leaves  in  dispute.  Rapp  v.  Giddings,  4 
S.  D.  492,  57  N.  W.  237.  Pertinent  Redundant  Instructions  Refused.  Refusal 
to  give  instructions  requested  that  are  correct  in  law  and  applicable  to  the 
case,  is  not  error,  where  the  charge  already  given  fairly  covers  the  point. 
Daeley  et  al  v.  Minn.  &  N.  Elevator  Co.,  4  N.  D.  269,  60  N.  W.  59. 

Construction  of  Contract — Waiver.  Where  a  contract  is  construed  by 
the  trial  court  in  instructing  the  jury,  without  objection,  such  construction 
will  be  assumed  to  be  correct,  by  this  court,  and  its  correctness  will  not  be 

questioned.     Brown   v.    McCall   et  al,    S.  D ,  60  N.  W.  151.     Sale 

Order — Refusal  to  Receive  Stacker.  In  an  action  for  purchase  price  of  a 
straw  stacker,  held,  under  the  facts  stated,  that  the  court  erroneously  in- 
structed the  jury  that  plaintiff  had  the  right  to  refuse  to  receive  the  ma- 
chine under  the  terms  of  a  written  order.  Reeves  &  Co.  v.  Corrigan  et  al,  3 
N.  D.  415,  57  N.  W.  80;  Fahey  v.  Machine  Co.,  3  N.  D.  220,  55  N.  W.  580. 

Withdrawing-  Testimony — Instructions  Curing.  In  instructing  the 
jury  the  court  withdrew  from  them  certain  specified  testimony  and  stated 
that  it  must  not  be  considered;  held,  under  the  circumstances  stated,  that 
the  error,  if  any,  in  admitting  the  evidence,  was  in  this  particular  case  cured 
by  such  instructions.  Bishop  v.  Chi.,  Mil.  &  St.  P.  Ry.  Co.,  4 
N.  D.  536,  62  N.  W.  605;  Thomp.  Tr.  sec.  723,  351  and  cases 
cited  in  notes;  Id.  sec.  2354;  State  v.  McGahey,  3  N.  D.  293, 
55  N.  W.  753.  Jury's  Disregard  of  Submitted  Testimony.  A 
jury  has  no  right  to  arbitrarily  or  capriciously  disregard  testimony  submit- 
ted to  them  by  the  court.      Drew  et  al  v.  Watertown  F.  Ins.  Co., S.  D. 

,  61  N.  W.  34;  Lomer  v.  Meeker,  25  N.  Y.  361;  Emerson  v.  Santa  Clara 

Co.,  40  Cal.  543;  Newton  v.  Pope,  1  Cow.  109;  and  where  the  instruction  to 
the  jury  is  unchallenged,  and  its  correctness  unquestioned  either  in  the  trial 
court  or  here,  a  verdict  in  open  disregard  of  the  instruction  cannot  stand. 
Drew  et  al  v.  Watertown  F.  Ins.  Co.,  supra;  McMahon  v.  People,  120  N.  Y. 
584,  11  N.  E.  883;  Elwood  v.  Telegraph  Co.,  45  N,  Y.  553;  Dickinson  v.  Bent- 
ly  (la.),  45  N.  W.  903.  Value  of  Wheat — Conversion.  An  instruction,  in 
an  action  for  the  value  of  wheat  seized  by  defendant  as  sheriff  under  attach- 
ment against  the  father  and  agent  of  plaintiff,  charging  the  jury  that  they 
must  deduct  certain  wheat  taken  for  settlement  of  other  claims,  from  what- 
ever amount  defendants  are  shown  to  have  seized,  lield,  correct  under  the 
evidence.     Pickcrt  v.  Rugg  et  al,  1  N.  D.  230,  46  N.  W.  446. 

Fraudulent  Transfer — Attachment  —Ruling  Ig^noring  Fraud.  In  an 
action  against  a  sheriff  for  the  value  cf  a  stallion  taken  by  defendant  under 
warrant  of  attachment,  the  defense  being  that  an  alleged  sale  by  the  defend- 


134  CODE  OF  CIVIL  PROCEDURE. 

ant  in  attachment  to  the  plaintiff  in  the  present  suit  was  fraudulent  and  void 
under  sec.  4657  Comp.  Laws,  because  no  change  of  possession  was  made,  held, 
that  the  trial  court  erred  in  refusing  to  submit  any  pthc  than  the  question 
of  damages  to  the  jury.    Conrad  v.  Smith,  sheriff,  2  N.  D.  408,  51  N.W.  720. 

6.     Verdict 

See,  "Verdict,"  chap.  IV.  page  32. 

(a).     Generally. 

Nothing  to  Review — "Verdict  Against  Law."  When  the  correct- 
ness of  the  instructions  is  not  questioned,  and  it  is  not  claimed  that  the  ver- 
dict is  inconsistent  therewith,  there  is  nothing  for  this  court  to  examine  un- 
der an  assignment  that  "the  verdict  is  against  the  law."    Bauder  v.  Scam- 

ber,  et  al,  . . . .  S.  D ,  63  N.  W.  227;  Haynes  New  Tr.  &  App.  sec.  99, 

and  cases  cited.  Possession  Through  Ownership — Judgment.  Where 
each  party  claims  right  of  possession  solely  through  ownership,  a  verdict  in 
an  action  of  claim  and  delivery,  finding  plaintiff  entitled  to  posses- 
sion, and  fixing  value  will  support  a  judgment  for  plaintiff  for  its  possession , 
or  its  value.  Branstetter  v.  Morgan,  3  N.  D.  290,  55  N.  W  758;  Krause  v. 
Cutting,  32  Wis.  688;  Everit  v.  Bank,  13  Wis.  468;  Faulkner  v.  Meyers,  6 
Neb.  415;  Underwood  v.  White,  45  111.  438;  Clark  v.  Heck,  17  Ind.  28J; 
Payne  v.  June,  92  Ind.  253.  Finn — General  Verdict — Judgment.  Upon  a 
general  verdict  for  plaintiff  and  against  defendant,  in  an  action  against  a 
firm  composed  of  two  persons,  it  is  error  to  render  judgment  against  plain- 
tiff dismissing  the  action  as  to  one  member  with  costs.  Kellogg,  Johnson  «fc 
Co.  V,  Oilman,  3  N.  D.  538,  538,  68  N.  W.  339.  Ownership,  Prima  Facie. 
Where  the  proof  shows  prima  facie  ownership  in  plaintiff,  it  is  error  for  the 
court  to  direct  a  verdict  for  defendant  on  the  question  of  title.  Warder, 
Bushnell  and  Glessner  Co.  v.  Ingli,  1  S.  D.  155,  46  N.  W.  181.  Not  Sup- 
ported, or  Against  Instructions.  A  verdict  that  must  be  either  without 
support  in  the  evidence,  or  contrary  to  instructions,  cannot  stand.  McMil- 
lan et  al  V.  Aitchison,  3  N.  D.  183,  54  N.  W.  1030.  Construction  of  Verdict. 
Where  co-partners  are  sued,  held,  that  a  verdict  in  favor  of  plaintiff  "and 
against  the  defendant,"  was  properly  construed  against  the  two  defendants, 
and  a  judgment  rendered  thereon  was  valid,  the  omission  of  the  letter  "s" 
in  defendant  being  a  mere  clerical  error,  which  should  be  disregarded. 
Jeansch  v.  Lewis  et  al,  1  S.  D.  609,  48  N.  W.  128;  Kelsey  v.  R.  R.  Co.,  1  S. 
D.  80,  45  N.  W.  204. 

Special  Finding— Negligence.  A  special  finding  of  a  jury  that  the 
negligence  of  defendant  causing  damage  to  plaintiff  was  the  condition  of  its 
engine  is  within  the  allegations  that  "defendant  carelessly  and  negligently" 
ran  an  engine  along  its  line,  "which  engine  then  and  there  was  so  negli- 
gently and  insufficiently  constructed  and  equipped,  and  then  and  there  was 
so  negligently  and  carelessly  operated  by  the  defendant,  that  it  emitted  and 
threw  out  large  sparks  of  fire.     Smith  v.  Chi.  Mil.  &  St.  P.  Ry.  Co.,  4  S.  D, 


ERROR   IN   LAW.  135 


71,  55  N.  W.  717.  Neither  General  Nor  Special.  In  an  action  of  replevin, 
held,  under  the  facts  stated,  that  the  verdict,  being  neither  general  nor  spec- 
ial, did  not  support  the  judgment  for  defendant  entered  thereon.  Rudolph 
V.  North,  6  Dak.  79,  50  N.  W.  487. 

(b).     Directing  Verdict 

SEotioii  to  Direct — Subsequent  Evidence.  Eri-or  cannot  be  assigned 
on  a  ruling  overruling  a  motion  for  verdict  where  defendant  subsequently 
put  in  evidence;  he  should  have  renewed  his  motion  upon  all  the  evidence. 
Bowman  v.  Eppinger,  1  North  Dakota,  21,  44  Northwest  1000;  Railway 
Company  v.  Cummins,  106,  U.  S.  700,  1  Supreme  Court;  493;  Insur- 
Company  v.  Crandal,  7  Sup.  Ct.  .685;  Ass'n.  v.  Willard,  48  Cal.  617; 
Bradley  v.  Poole,  98  Mass.  169.  Motion  Improperly  Granted.  The  trial 
court  having  set  aside  a  verdict  which  had  been  directed  for  plaintiff,  upon 
the  ground  that  the  motion  to  direct  the  verdict  was  not  properly  granted, 
defendants  being  bound,  under  the  facts  stated,  to  return  the  machine  in 
question,  held^  that  the  order  setting  aside  the  verdict  and  granting  a  new 
trial  is  erroneous.  Minn.  Thresher  Mfg.  Co.  v.  Lincoln,  et  al,  4  N.  D.  410, 
61  N.  W.  145.  Directing— "Error  of  Law."  The  direction  of  a  verdict 
upon  the  evidence,  if  erroneous,  is  an  "error  of  law  occurring  at  the  trial." 

Sioux  Banking  Co.  v.  Kendall  et  al S.  D 62  N.  W.    377;  Donahue 

v.  Gallavan,  43  Cal.  573.  Is  Error  of  Law — Review.  The  directing  of  a 
verdict  at  the  close  of  testimony,  if  eri'oneous,  is  error  of  law  occurring  on 
the  trial,  and  may  be  reviewed  without  motion  for  a  new  trial.  Jones  Lum. 
&  Mer.  Co.  v.  Faris,  5  S.  D.  348,  60  N.  W.  403.  Negligence— Statutory 
Presumption  Overcome.  A  motion  to  direct  a  verdict  for  defendant  at  close 
of  all  tebtimony  should  be  sustained,  although  the  killing  in  question  is  ad- 
mitted, when  a  statutory  presumption  of  negligence  arising  therefrom^ 
is  clearly  "overcome    by    undisputed    evidence.     Lewis    v.    Ere   E.    &    M. 

Valley    Railroad    Company,     S  D. ,    63    Northwestern  781. 

Sale  Note — Waiver  of  Warranty.  In  an  action  upon  a  note  for  purchase 
price  of  a  separator,  plaintiff  moved  at  the  close  of  the  evidence,  for  ver- 
dict; held,  under  the  facts  stated,  that  the  only  question  the  trial  court  could 
consider  in  ruling  on  the  motion  is  whether  the  testimony  did  or  not  show 
a  waiver  as  to  warranty.  Minn.  Thresher  Mfg.  Co.  v.  Lincoln  et  al,  4  N.  D. 
410,  61  N.  W.  145;  Bank  v.  Laughlin,  4  N.  D.  391,  61  N.  W.  473. 

(c)  Vacation  on  Court's  Motion— What  Should  Appear.  A  verdict 
to  which  neither  party  has  objected  should  not  be  vacated  on  the  court's 
own  motion,  unless  there  has  been  such  clear  disregard  of  instructions  or 
evidence  that  the  court  is  at  once  satisfied  without  mature  reflection  or  aid 
of  argument  that  such  verdict  resulted  from  passion  or  prejudice,  or  from 
misapprehension  of  instructions;  and   the  order  should  be  made  promptly 

upon  coming  in  and  entry  of  verdict.     Clement  v.  Barnes, S.  D  . .  ,  61N. 

W.  1126;  sec.  5091  Comp.  Laws;  Gould  v.  Elevator  Co.,  2  N.  D.  216;  50  N. 
W.  970;  Hayne  New  Tr.  &  App.  pp.  10  and  11. 


136  CODE  OF  CIVIL  PROCEDURE. 

7.     Findings. 

Order  of  Reference  -Powers  Conferred.  An  order  referring  "the ac- 
tion" to  a  referee,  "with  the  usual  powers,"  made  upon  consent  of  defendant 
that  the  civse  be  referred  to  take  testimony  and  report,  warrants  the  referee 
in  making  and  reporting  findings  of  fact  and  conclusions  of  law.  Illstad  v. 
Anderson,  1  N.  D.  167,  49  N.  W.  659;  Sess.  Laws  1889,  ch.  112,  sec.  1.  Con- 
sent Presumed  When — Record.  An  order  of  reference  may  under  provisions 
of  the  statute  as  they  existed  prior  to  1889,  made  upon  due  notice,  no  appear- 
ance or  objection  being  made  by  opposing  party,  or  motion  to  vacate  the  or- 
der, several  months  elapsing  between  date  of  order  and  hearing  before  ref- 
eree,  is  presumed  to  have  been  made  with  consent  of  opposite  party,  and 

will  be  held  valid  and  binding.     Jerauld  Co.    v.    Williams  et  al, S.  D. 

. . . .,  63  N.  W.  905;  Kent  v.  Ins.  Co.,  2  S.  D.  300,  50  N.  W.  85;  and  where  it 
is  not  stated  in  the  abstract  that  there  was  no  agreement  of  parties  filed  or 
entered,  this  court  will  presume  such  agreement  was  made  and  filed  or  en- 
tered. Id.  Referee— Ordet  Confirming  Report — Waiver.  When  a  case 
tried  to  a  referee  is  resubmitted  to  the  referee  on  motion  for  judgment,  and 
goes  to  judgment  on  the  referee's  final  report,  defendant  not  raising  the 
point  that  an  order  confirming  the  report  was  not  previously  made,  the  ir- 
regularity is  waived,  and  the  point  cannot  be  raised  for  the  first  time  in  this 
court.  Little  v.  Little,  2  N.  D.  175,  49  N.  W.  786;  but  the  question  whether 
it  is  proper  practice  to  procure  such  order  of  confirmation  before  applying 
for  judgment,  is  not  decided.     Id. 

Neglected  Issues  -Reversal.  Where  several  issues  are  involved,  and 
the  referee  omits  findings  upon  some  issues,  which  findings  are  suffered  to 
be  made  the  basis  of  a  judgment  without  objection,  the  judgment  being  con- 
sistent with  and  supported  by  the  findings,  this  court  will  not  reverse  on  ac- 
count of  such  neglected  issues  unless  appellant  shows  that  evidence  was 
offered  upon  one  or  more  of  such  issues  which  would  support  a  finding  coun- 
tervailing findings  made,  and  requiring  a  different  judgment.  Merchants' 
Nat.  Bank  v.  McKinney,  4  S.  D.  226,  55  N.  W.  929;  Edinburgh-American  L. 
&  M.  Co.  V.  City  of  Mitchell,  1  S.  D.  593,  48  N.  W.  134;  Hutchings  v.  Castle, 
48Cal.  152;  Himmelman  v.  Henry,  84  Cal.  104,  23  Pac.  1098;  Winslow  v, 
Gohransen,  88  Cal.  450,  26  Pac.  504;  Dolliver  v.  Dolliver,  94  Cal.  642,  30  Pac.  4; 
Fincher  v.  Malcolmson  (Cal.),  30  Pac.  835;  and  an  appellant  cannot  complain 
that  no  finding  was  returned  upon  an  issue,  when  the  record  shows  that  such 
finding,  if  made,  must  have  been  against  him.  Id.  Inconsistent  Findings. 
In  foreclosure  of  mechanic's  lien  upon  a  homestead  standing  in  the  wife's 
name,  involving  the  question  of  agency  of  the  husband,  the  findings  of  the 
trial  court  were  inconsistent  with  each  other  and  with  the  theory  that  the 
contract  was  that  of  the  wife,  or  of  the  husband,  or  jointly  by  both;  held,  a 
judgment  for  plaintiff  upon  the  findings  should  be  reversed  and  a  new  trial 
granted.    Cawley  et  al  v.  Day  et  al,  4  S.  D.  221,  56  N.  W.  749.     Ambigruous 


ERROR   IN   LAW.  137 


—Intention — Other  Findings  Considered.  In  construing  an  ambiguous 
finding  of  fact  made  by  the  trial  court,  this  court  may  consider  all  the  find- 
ings to  determine  what  was  intended,  and  its  duty  is  to  so  construe  a  finding 
as  to  support  a  conclusion  that  follows,  when  it  can  be  done  without  violence 
to  language  used.  Moore  v.  Booker  et  al,  4  N.  D.  643,  62  N.  W.  607.  Addi- 
tional— Nunc  pro  Tunc.  Where  on  trial  to  the  court  findings  and  conclus- 
ions of  law  are  filed  with  the  judgment,  the  court  has  power  to  make  addi- 
tional though  entirely  consistent  findings,  confo'-ming  more  specifically  to 
the  decision  as  orally  announced  at  conclusion  of  trial,  and  file  them  .nunc 

pro  tunc.     Martin  V.  Minnekahta  State  Bank,    S.    D ,64  N.   W. 

127;  Comp.  Laws  sec.  4938,  4939,  4941;  Ins.  Co.  v.  Boon,  95  U.  S.  117;  Williams 
V.  Ely,  13  Wis.  1;  Mf'g  Co.  v.  Adams  (Minn.),  50  N.  W.  360.  Added  Con- 
clusions of  Law.  Under  sec.  3  of  chapter  112,  Laws  1889,  the  trial  court 
was  authorized  to  add  conclusions  of  law,  omitted  or  imperfectly  stated  in 
the  referee's  report,  and  enter  judgment  accordingly,  without  re-referring 
the  report.  Kent  v.  Dak.  F.  &  M.  Ins.  Co.,  2  S.  D.  300,  50  N.  W.  85;  and 
referees  are  only  required  to  state  their  conclusions  of  law,  under  sees.  1  and 
3  of  said  chapter,  when  all  issues  of  fact  and  law  are  referred.  Id.  Waiver 
of,  Presumed  When.  The  statute  allows  parties  to  waive  findings  by  the 
court,  and  a  waiver  will  be  presumed  unless  the  fact  of  non-waiver  is  shown 

of  record.     Chandler  v.  Kennedy, S.  D ,  65  N.  W.  439.      Improper 

Evidence  no  Foundation  For.  Where  a  case  is  tried  to  the  court,  and  im- 
material and  incompetent  evidence  has  been  improperly  admitted,  such  evi- 
dence requires  no  specific  finding  of  fact,  and  it  is  no  error  to  disregard  it. 

Martin   v.  Minnekahta  State  Bank,  . . . .  S.  D ,  64  N.  W.  127.     Where 

Result  Not  Different — Reversal.  A  judgment  will  not  be  reversed  for 
failure  of  trial  court  to  make  a  finding  on  a  particular  point,  where  th«  re- 
sult could  not  have  been  different  had  the  fact  been  found  as  alleged  by  the 
objecting  party.  Joslyn  v.  Smith  et  al,  2  N.  D.  53,  49  N.  W.  382.  Imma- 
terial Findings.  Immaterial  findings  which  are  not  the  basis  of  the  judg- 
ment, other  sufficient  findings  appearing  in  the  record,  will  not  vitiate  the 
judgment  or  cause  its  reversal.  Caledonia  Gold  Min.  Co.  v.  NooHan  et  al,  3 
Dak.  189,  14  N.  W.  426;  Golden  Terra  Min.  Co.  v.  Smith,  11  N.  W.  97. 
Findings,  and  Report  of  Evidence,  Mandatory,  The  provision  in  sec.  3 
of  chapter  112,  Laws  1889,  that  a  report  be  made  of  findings,  with  all  evi- 
dence and  exceptions  taken  on  the  hearing,  is  mandatory.  Kent  v.  Dak.  P. 
&  M.  Ins.  Co.,  2  S.  D.  300,  50  N.  W.  85. 

8.   Exceptions. 

No  Specifications,  No  Review.     To  be  available  here,  errors  of  law 

occurring  at  the  trial,  and  excepted  to,  must  be  particularly  specified;  and 

when  the  appeal  is  taken  only  from  an  order  overruling  a  motion  for  a  new 

trial,  errors  neither  urged  nor  presented  in  a  statement  or  bill  at  the  hear- 

9i— T  P 


138  CODE  OP  CIVIL  PROCEDURE. 


ing  of  said  motion  will  not  be  reviewed.    Tootle  et  al  v.  Petrie,  sheriff, 

S.  D ,  65  N.  W.  43.  No  Specifications  of  Error— Review.  Alleged  er- 
rors of  law  occurring  at  the  trial,  and  discussed  in  appellants  brief,  will  not 
be  reviewed  on  appeal,  where  the  bill  of  exceptions  embodied  no  specifica- 
tions of  error,  the  appeal  being  from  an  order  denying  motion  for  a  new 

trial.     Schmitz  v.  Heger N,  D ,  64  N.   W.   943;  sec.  5090  Comp. 

Laws;  Hostetter  v.  Elevator  Co.  4  N.  D.  357,  61  N.  W.  49;  First  National 
Bank  of    Devil's    Lake    v.    Merchant's    National    Bank   of  Devil's  Lake, 

. . . .  N.  D ,  64  N.  W.  941;  lUstad  v.  Anderson,  2  N.  D.   167,  49  N.  W. 

659;  3  Estee  PI.  &  Prac,  sec.  4896  and  cases  cited.  Specific  Exception- 
Negligence.  A  exception  to  instructions  by  the  court  "for  the  reason  that 
they  are  liable  to  mislead  the  jury,  and  for  the  reason  that  the  jury  in  its 
verdict  would  pass  upon  these  questions,"  is  too  general  to  be  available  on 
appeal  or  on  motion  for  a  new  trial.  But  a  specification  in  a  motion  for  a 
new  trial,  "that  the  verdict  is  contrary  to  the  law  and  the  facts,  in  that  the 
negligence  of  the  defendant  was  the  proximate  cause  of  the  injury  to  the 
plaintiff,  and  that  there  is  no  evidence  in  the  case  that  shows  that  the  plain- 
tiff was  guilty  of  any  negligence  whatever,"  sufficiently  conforms  to  the 
statute.  Alt.  v.  Chi.  &  N.  W.  Ry.  Co.  5  S.  D.  20,  57  N.  W.  1126. 
9.     Assignment  of  Error. 

No  Assignment — Reference  to  Specifications.  There  being  no  assign- 
ment of  errors  in  appellant's  brief  and  no  reference  to  specifications  of  error 
required  by  the  statute,  held,  that  the  judgment  below  should  be  affirmed. 
O'Brien  v.  Miller,  4  N.  D.  308,  60  N.  W.  841;  Sup.  Ct.  Rule  No.  15  N.  D.; 
InvestmentCo.  v.  Boyum,  3  N.  D.  538,  58  N.W.  339.  Unspecified  Errors  Dis- 
regarded. Errors  not  specified  in  bill  of  exceptions,  where  motion  for  a 
new  trial  is  made  on  a  bill,  must  be  disregarded  by  the  trial  court  and  on 
appeal.  lUstad  v.  Anderson.  2  N.  D.  167,  49  N.  W.  659;  sec.  5090  Comp. 
Laws,  subd.  2.  Hust  Aflarmatively  Appear.  Error  alleged  in  this  court 
must  affirmatively  appear  of  record  or  this  court  will  not  reverse  the  judg- 
ment. Kent  v.  Dak.  F.  &  M.  Ins.  Co.,  2  S.  D.  300,  50  N.  W.  85;  Herrick  v. 
Butler,  30  Minn.  156,  14  N.  W.  794.  Immaterial  Matters.  Errors  assigned 
upon  immaterial  matters  will  not  be  reviewed;  so  held,  where  a  charge  to 
the  jury  did  not  injure  appellant.  Daeley  et  al  v.  Minn.  &  N.  Elevator  Co., 
4  N.  D.  269,  60  N.  W.  59.  Ruling— Record  Must  Show.  An  assignment 
alleging  error  in  the  ruling  of  the  trial  court  is  unavailable  here,  the  record 

not  showing  that  such  ruling  was  made.     Johnson   v.    Gilmore, S.  D. 

,  60,  N.  W.  1070.  Assignment  Not  Relied  On.  An  assignment  of  er- 
ror which  is  not  relied  upon  or  mentioned  by  counsel  in  argument  will  not 
be  considered.  Franz  Falk  Brew.  Co.  v.  Mielenz  et  al,  5  Dak.  136,  37  N.  W. 
728;  Phillip  Best  Brew.  Co.  v.  Pillsbury  &  H.  E.  Co. ,  5  Dak.  62  37  N. 
W.  763. 

Reference  to  Abstract — Rule.  Assignments  of  error  in  this  court  which 
do  not  refer  to  the  abstract,  are  insufficient,  under  rule  15  of  this  court,  and 


J 


ERROR  IN   LAW.  l39 


will  not  be  considered  unless,  for  reasons  satisfactory  to  the  court,  the  rule  is 
relaxed  in  furtherance  of  justice  and  on  terms.  Hostetter  v.  Brooks  Elevator 
Co.,  4  N.  D.  357,  61  N.  W.  49.  Assignment  in  Brief— Abstract.  At- 
tempted assignment  of  error  in  a  brief,  where  no  specifications  of  error  are 
found  in  the  abstract,  and  no  reference  being  made  in  the  assignments  of  er- 
ror in  the  brief  to  any  page  of  abstract  where  they  could  be  found,  are  of  no 
avail,  under  rule  15  of  supreme  court  rules  (61  N.  W.  p.  IX);  Schmitz  v.  Heger, 
supra.  Must  Assign  Error  in  Overruling  Motion.  Where  an  action  is 
tried  to  the  court,  and  a  motion  for  a  new  trial  on  the  ground  of  the  insuffi- 
ciency of  the  evidence  to  sustain  the  findings  is  overruled,  an  appeal  from 
the  judgment  does  not  present  the  evidence  for  review  in  this  court  unless 
error  is  assigned  in  overruling  the  motion  for  a  new  trial.  Pierce  et  al  v. 
Manning,  2  S.  D.  517,  51  N.  W.  332:  Clark  v.  Schnur,  40  Kan.  72,  19 
Pac.  327;  Struthers  Fuller,  45  Kan.  735,  26  Pac.  471;  Carson  v.  Funk,  27 
Kan.  524;  Lingerman  v.  Nave,  31  Ind.  222. 

10.     The  Record. 

Judgment  Roll— Appearance.  The  question  whether  voluntary  ap- 
pearance of  defendant  in  the  county  court  of  this  state,  being  one  of  limited 
and  special  jurisdiction  does  away  with  necessity  for  summons  as  part  of 
judgment  roll  for  purpose  of  proving  judgment,  as  against  a  stranger,  raised 
but  not  decided.  Ayers,  Weatherwax  &  Reid  Co.  v.  Sundback,  sheriff,  6 
S.  D.  362,  58  N.  W.  4;  and  see  as  bearing  on  this  point,  Black,  Judgm.  sec. 
282;  Cooper  v.  Sunderland,  3  la.  114;  Wilkinson  v.  Moore,  79  Ind.  397;  Hen- 
ry V.  Estes,  127  Mass.  474;  sees.  4892,  4904  Comp.  Laws.  Appeal — Questions 
Considered.  Where  the  record  on  appeal  consists  only  of  pleadings,  special 
verdict,  and  judgment,  the  only  error  assigned  being  that  the  judgment  is 
not  supported  by  the  special  Verdict,  no  other  question  not  jurisdictional  can 
be  considered.  John  A.  Tolman  Co.  v.  Savage  et  al,  5  S.  D.  496,  59  N.  W. 
882.  Appeal  From  County  Com'rs — De  Novo.  An  appeal  from  the  action 
of  a  Board  of  County  Commissioners  must  be  tried  7?e  novo  in  the  District 
Court;  and  to  enable  this  court  to  review  the  evidence  offered  before  such 
Board  it  must  be  again  offered  in  the  District  Court  and  incorporated  in  a 
bill  of  exceptions.  Nothing  appearing  in  the  record  to  the  contrary,  every 
presumption  is  in  favor  of  the  regularity  of  the  proceedings  below.  In  the 
matter  of  opening  Gold  street,  Deadwood  v.  Newton,  2  Dak.  149,  3  N.  W. 
329.  Supplemental  Abstract— Affidavit  of  Publication.  Leave  to  file  a 
supplemental  abstract  solely  to  present  a  corrected  printer's  affidavit  of  pub- 
lication, not  before  the  trial  court  but  filed  therein,  nunc  pro  tunc,  long  after 
an  appeal  had  been  perfected,  will  not  be  allowed.     Iowa  State  Sav.  Bank  v. 

Jacobson, S.D ,66  N.W.  453;  Ladd  v.  Couzins,  85  Mo.  514;  Clelland 

V.  People,  4  Colo.  244;  Kirby  v.  SuperiorCt.,  68  Cal.  604, 10  Pac.  119.  Motion- 
Renewal  of.  A  motion  once  heard  and  decided  cannot  be  renewed  in  the 
same  court  upon   the  same  facts  without  leave  of  court,  whether  there  has 


140  CODE  OF  CIVIL  PROCEDURE. 


been  a  change  of  judges  or  not;  and  the  question  whether  the  application  is 
a  second  one  or  not  may  be  determined  upon  evidence,  though  no  record  was 
made  of  the  former  ruling.  Jeansch  v.  Lewis  et  al,  1  S.  D.  609,  48  N.  W. 
128. 

77.     Error — Reversal,  Etc. 

Not  Affecting  Result.  A  judgment  will  not  be  reversed  on  account  of 
the  admission  of  improper  evidence,  when  it  appears  that  without  such  evi- 
dence the  verdict,  or  findings  of  the  court  must  have  been  the  same.  John 
A.  Tolman  Co.  v.  Bowerman  et  al,  5  S.  D.  197,  58  N.  W.  568;  1  Greenl.  Ev. 
sec.  435.  Error,  ii  Evidence  May  Prejudice.  The  appellate  court  will  not 
inquire  whether  the  improper  evidence  received,  did  in  fact  prejudice  the 
objecting  party,  but  whether  it  could  reasonably  and  properly  have  been 
so  understood  by  the  jury  as  to  prejudice  him;  and  where  the  jury  may 
fairly  and  reasonably  have  understood  the  improper  evidence  in  a  way  to  in- 
juriously prejudice  the  party  objecting,  a  new  trial  must  be  granted.  Yank- 
ton Co.  V.  Rossteuscher,  1  Dak.  120,  46  N.  W.  575;  47  N.  Y.  186;  43  N.  Y.  200;  4 
Waifs  Pr.  239  and  cases  there  cited.  Prejudice  Must  Appear.  Error  in 
excluding  legal  evidence  or  admitting  illegal  evidence,  must  appear  to  be 
prejudicial  in  order  to  warrant  a  reversal  or  new  trial.  Burdick  v.  Hag- 
gart,  4  Dak.  13,  22  N.  W.  589;  Yankton  county  v,  Rossteuscher,  1  Dak.  120, 
46  N.  W.  575;  Baird  v.  Gillette,  47  N.  Y.  186;  Starbird  v.  Barrens,  43  N.  Y. 
200;  4  Wait's  Pr.  239.  The  rule  is,  could  the  improper  evidence  reasonably 
and  properly  have  been  so  understood  by  the  jury  as  to  prejudice  the  object- 
ing party.  Yankton  county  v.  Rossteuscher,  supra.  Error — Prejudice  Pre- 
siuned.  When  error  is  shown  in  refusal  to  strike  out  material,  incompetent 
evidence,  the  presumption  is  that  prejudice  resulted,  and  unless  this  court 
can  see  that  no  such  result  ensued,  the  case  must  be  reversed  and  new  trial 
granted.  Wendt  v.  Chi.  Mil.  St.  P.  &  O.  Ry.  Co.,  4  S.  D.  476,  57  N.  W.  226. 
Presumed  Misapplication  of  Evidence.  This  court  will  not  assume  that 
the  trial  court  considered  evidence,  admitted  to  establish  one  fact,  in  finding 
another  fact  which  it  was  not  legally  competent  to  prove.  Dows  et  al  v.  Glas- 
pel,  4  N.  D.  251,  60  N.  W.  60.  Immaterial  Evidence.  Error  in  the  admis- 
sion of  immaterial  evidence  which  worked  no  injury  to  defendants,  is  not  a 
ground  for  reversal.  Davis  v,  Iverson  et  al,  5  S.  D.  295,  58  N.  W.  796.  Fav- 
orable Testimony — Harmless  Error.  Testimony  wholly  favorable  to  de- 
fendant, admitted  against  his  objection,  does  not  constitute  prejudicial  error 
if  improperly  admitted.  Bishop  v.  Chi.  Mil.  &  St.  P.  Ry.  Co.,  4  N.  D.  536, 
62  N.  W.  605.  Unresponsive  Answer.  An  unresponsive  answer  contain- 
ing improper  testimony  should  be  stricken  out,  and  refusal  to  do  so  is  rever- 
sible error  if  prejudicial  to  a  suitor.  Smith  v.  No.  Pac.  R.  Co.,  3  N.  D.  655, 
58  N.  W.  345;  1  Thomp.  Tr.  sec.  718. 

12.     Practice — Procedure. 

[Under  these  heads  are  arranged  decisions  upon  various  stages  of  ac- 
tions and  proceedings,  many  of  which  might  properly  be  referred  to  some 


ERROR  IN  LAW.  141 


special  subject — heading  found  under  this  subdivision  of  the  general  sec- 
tion under  considei-ation,  and  some  of  which,  on  the  other  hand,  are  within 
the  scope  of  decisions  arranged  under  those  headings;  but  which  properly 
come  under  the  subjects  of  practice  and  procedure,  and  are  accordingly, 
so  treated.] 

See  "Instructions,"  ''Pleadings,"  "Examination  of  Witnesses," 
"Verdict,"  "■Exceptions,"  and  "Assignment  of  Error,"  supra. 

(a).     Jurisdiction. 

Jurisdiction  of  Superior  CcTurt —Presumption.  The  jurisdiction  of  a 
superior  court  need  not  affirmatively  appear  in  the  judgment  roll.  If  it  does 
not,  and  the  contrary  does  not  therein  affirmatively  appear,  jurisdiction  will 

be  conclusively  presumed.  Seaman  v.  Galligan  etal, S.  D 66  N.  W. 

458;  Hahm  v.  Kelly,  34  Cal.    391;  Richards  v.  Matteson,  S.  D 65 

N.  W.  428;  Black  Judgm.  sec.  270-279  and  cases  cited.  Adoption — niegiti- 
mate  Child — Mother's  Consent.  When  it  reasonably  appears  to  the  satis- 
faction of  the  judge  of  the  county  court  that  for  a  period  of  one  year  a  moth- 
er has  abandoned  her  illegitimate  child,  an  order  of  adoption  may  be  made 
without  the  consent  and  against  the  objection  of  such  mother.  Richards  v. 
Matteson  ot  al, S.  D  ,  65  N.  W.  428.  Habeas  Corpus— Jurisdic- 
tion. Inquiry  upon  habeas  corpus  is  limited  to  the  grounds  enumerated  in 
sec.  7841  Comp.  Laws;  and  where  a  want  of  jurisdiction  does  not  expressly 
or  by  necessary  implication  appear,  the  jurisdiction  of  a  court  of  record  to 
make  an  order  relating  to  a  subject  over  which  it  has  general  original  juris- 
diction will  be  presumed.     Richards  v.   Matteson  et  al,  . . . .  S.  D ,65 

N.  W.  428.  Venue — Removal  of  Cause^Ad  Damnum.  The  amount  de- 
manded in  the  complaint  controls  in  determining  whether  the  matter  in  dis- 
pute exceeds  $2000,  on  application  to  remove  the  cause  to  the  Federal  Court 
on  ground  of  diverse  citizenship.  Smith  v.  No.  Pac.  R.  Co.,  3  N.  D.  17,  53 
N.  W.  173;  Post.  Fed.  Pr.  sec.  16  and  cases  cited;  Desty  Rem.  Causes  p.  246, 
sec.  10;  Dill.  Rem.  Causes,  Ch.  16;DeCamp  v.  Miller,  44  N.  J.  Law  617. 

(b).     Demand  Before  Suit 

Conversion — Fruitless  Demand.  In  an  action  for  conversion  of  per- 
sonal property,  where  defendant  denied  plaintiff's  ownership  and  his  posi- 
tion and  claim  made  it  evident  that  a  demand  would  have  been  fruitless,  no 
demand  is  required.    Consolidated  Land  &  Irrigation  Co.  v.  Hawley,  sheriff, 

. . . .  S.  D 63  N.  W.  904;  Rosum  v.  Hodges,  1  S.  D.  313,  47  N.  W.  140; 

Myrick  v.  Bill,  3  Dak.  284,  17  N.  W.  268;  Smith  v.  McLean,  24  la.  322;  Raper 
v.  Harrison,  37  Kan.  243,  15  Pac.  219;  Rosenau  v.  Syring  (Ore.),  35  Pac.  844. 
Mortgagee  v.  Purchaser.  An  action  for  the  value  of  mortgaged  chattels, 
cannot  be  maintained  by  the  mortgagee  against  a  purchaser  thereof  who 
merely  buys,  pays  for  and  takes  possession  of  the  property,  unless  demand  of 
possession  and  refusal  to  deliver  before  suit  is  shown.     Sandford  v.  Bell  et 


142  CODE  OF  CIVIL  PROCEDURE 


al,  2  N.  D.  6,  48  N.  W.  434;  Bigelow,  Lead.  Cas,  Torts,  pp.  446-7;  Gil  more 
V.  Newton,  9  Allen  171;  Kellog  v.  Olson  (Minn.),  24  N.  W  364;  sees.  4330, 
4338,  4346,  4348,  4356,  4358,  Comp.  Laws;  Jones  Chat.  Mort.  sec.  455;  Cad- 
•well  V.  Pray,  41  Mich.  307,  2  N.  W.  52;  Kohl  v.  Lynn,  34  Mich.  360.  Pre- 
senting Claim  to  Administrator— Mechanic's  Lien.  A  debt  secured  by  a 
mechanic's  lien  made  of  record  is  not  a  claim  that  must,  under  sec.  5790 
Comp.  Laws,  be  presented  to  an  administrator  for  allowance  or  rejection. 

Fish  et  al  v.  De  Laray  et  al,  . . . .  S.  D ,  66  N.  W.  465;  Phil.  Mech. 

Liens,  p.  494;  sec.  5795  Comp.  Laws;  Purdin  v.  Archer,  4  S.  D.  54,  54  N.  W. 

1043;  Kelsey  v.  Welch,  . . . .  S.  D ,  66  *N.  W.  390;  5  Am.  &  Eng.  Ency. 

I^w,  213;  Fallon  v.  Butler,  21  Cal.  32. 

(c).     Parties. 

Party  PlaintiflF— Grantee  of  Land.  In  an  action  to  recover  possession 
of  land,  and  damages  for  wrongfully  withholding  iifheld,  that  one  to  whom 
the  plaintiff  convoyed  the  land  while  defendant  was  in  actual  possession 
claiming  title  adversely  to  plaintiff,  was  properly  joined  as  party  plaintiff. 
Hegar  et  al  v.  DeGroat,  3  N.  D.  354,  56  N.  W.  150;  sees.  3303,  4870  Comp. 
Laws.  State's  Attorney — Authority  to  Sue — Presumption.  Where  a 
civil  action  is  brought  by  the  state's  attorney  in  his  official  capacity  in  the 
name  of  a  county,  against  the  county  treasurer  and  his  sureties,  to  recover 
money  alleged  to  be  due  from  the  treasurer  to  the  county,  a  court  will  pre- 
sume, in  absence  of  contrary  showing,  that  the  action  was  brought  by  order 

of  the  county  commissioners.     Jerauld  Co.  v.  Williams  et  al,  . . .  .S.  D , 

63  N.  W.  905.  Equitable  Owner  of  Judgment.  The  equitable  owner  of  a 
judgment,  being  the  real  party  in  interest,  may  in  his  own  name  maintain 

an  action  thereon.    J.  I.  Case  T.  M.  Co  v.  Pederson  et  al, S.  D ,60 

N.  W.  747;  Compton  v.  Davidson,  31  Ind.  62;  Fitnam  Tr.  Proc.  326.  Cor- 
porate Interests — Action  Protecting — Plaintiff.  While  as  a  general  rule 
an  action  to  protect  corjwrate  interests  must  be  brought  by  the  corporation 
itself,  still  the  right  of  stockholders  to  bring  such  action  in  their  individual 
names  is  recognized,  where  the  corporation,  by  its  directors,  refuses  to 
bring  the  action,  or  where  their  conduct  is  equivalent  to  a  refusal.     Loftus 

et  al  V.  Farmers'  Shipping  Ass'n.  et  al S.  D ,  65  N.  W.  1076;  sec. 

4719  Comp  Laws;  Spelling,  Priv.  Cor.  Vol.  2,  sec.  612;  Pom.  Eq.  Jur.  sec. 
1095;  Brewer  v.  Boston  Theater,  104  Mass.  378;  Eschweiler  v.  Stowell,  78 
Wis.  316,  47  N,  W.  361;  Moyle  v.  Landers'  Adm'rs.  83  Cal.  579,  23  Pac.  798; 
Miller  v.  Murray,  (Colo.  Sup.),  30  Pac.  46;  City  of  Chicago  v.  Cameron,  120 
111.  447,  11  N.  E.  899;  Young  v.  Drake,  8  Hun  61;  Heath  v.  R.  R.  Co.  8 
Blatchf.  347,  Fed.  Cas.  No.  6306;  Kelsey  v.  Sargent,  40  Hun  150;  Mussini  v. 
Goldthwaite,  34  Tex.  125;  Talbot  v.  Scripps,  31  Mich.  268;  Cogswell,  v.  Bull, 
39  Cal.  320.  "Wrongdoing  of  Majority  Directors— Director's  Suit.  If  the 
alleged  facts  show  the  defendants  charged  with  the  wrongdoing,  or  some  of 
them,  constitute  a  majority  of  the  directors  of  managing  body  at  the  time  of 


ERROR   IN    LAW.  143 


commencing'  suit,  or  that  the  directors  or  a  majority  thereof  are  still  under 
the  control  of  the  wrongdoing  defendants,  so  that  a  refusal  of  the  managing 
body,  if  requested  to  bring  a  suit  in  the  name  of  the  corporation,  may  be  in- 
ferred with  reasonable  certainty,  then  an  action  by  a  stockholder  may  be 
maintained  without  alleging  or  proving  any  notice,  request,  demand,  or  ex- 
press refusal.     Loftus'et  al  v.  Farmers'  Shipping  Ass'n.  et  al, S.  D , 

65  N.  W.  1076,  and  above  cases  there  cited. 

Property  in  Trust— Suit  at  Law,  When.  No  action  can  be  main- 
tained at  law  by  the  cestui  qui  trust  against  the  trustee  where  the  trust  re- 
mains open,  unless  the  exact  amount  due  has  been  liquidated,  and  no  act 
remains  undone  except  payment;  so  Jield  in  an  action  involving  property 
conveyed  absolutely,  but  as  security,  to  a  trustee.  Jasper  v.  Hazen,  1  N.  D. 
75,  44  N.  W.  1018;  Pom.  Eq.  Jur.  sees.  1079,  1080,  1421;  Johnson  v.  Johnson, 
120  Mass.  466;  Davis  v.  Coburn,  128  Mass.  382;  Norton  v.  Ray,  139  Mass.  230; 
Wingate  v.  Ferris,  50  Cal.  105;  Heyland  v.  Badger,  35  Cal.  405;  Sanfoss  v. 
Jones,  35  Cal.  481;  Judd  v.  Dike,  30  Minn.  380,  15  N.  W.  672.  Notice  of 
Motion— Defendant's  Names.  Notice  of  motion  where  there  are  numerous 
defendants  is  sufficient  which  gives  the  names  of  the  first-named  defendant, 
followed  by  the  abbreviation  "et  al",  in  the  absence  of  proof  that  the  adverse 
party  has  been  misled  or  prejudiced  thereby.  Jerauld  Co.  v.  Williams  et 
al,  ....S.D ,63N.  W.  905. 

(d).  Process— Native  Corporation — Foreign^  Insurance.  Where  an 
insurance  company  of  this  state  issued  a  fire  policy  to  parties  in  another 
state,  insuring  property  in  that  state,  it  is  subject,  in  an  action  on  such  pol- 
icy, to  the  laws  of  that  state  as  to  the  service  of  process  upon  such  corpora- 
tion.    Gude  et  al   v.   Dak.    F.    &  M.  Ins.  Co.,  ....  S.D 65  N.  W.  27. 

Publication  of  Summons — Order  Before  Attachment.  In  an  action  against 
a  non-resident  defendant  having  property  within  this  state,  an  order  for 
publication  of  summons  may  be  granted  before  said  property  has  been  actu- 
ally seized  under  attachment,  and  upon  an  affidavit  containing  a  statement 
of  all  jurisdictional  facts,  together  with  evidence  relating  thereto  sufficient 
to  convince  the  court  of  the  existence  of  a  case  authorizing  a  substituted  ser- 
vice under  the  statute.     Iowa  State  Sav.  Bank  v.    Jacobson,   S.  D , 

66  N.  W.  453.  Publication  Notice— "Six  Successive  "Weeks."  Proof  that 
a  notice  is  published  in  a  weekly  newspaper  for  seven  successive  issues  com- 
mencing on  December  25,  1891,  and  concluding  on  February  5,  1892,  is  suffi- 
cient to  show   publication  thereof  "once   in  each   week  for  six  successive 

weeks,"  as  required  by  statute.     Iowa  State  Sav.  Bank  v.  Jaeobson, S. 

D ,  66  N.  W.  435. 

(e).     Attachment 

Claim  and  Delivery— Attachment  -Wrong:ful  Release  of  Levy.  A 
sheriff,  defendant  in  an  action  in  claim  and  delivery,  is  precluded  from  ques- 
tioning the  bona  fides  of  a  prior  sale  of  the  property  in  question   by  the  de- 


144  CODE  OF  CIVIL  PROCEDURE. 

fendant  in  an  attachment  suit  (under  which  proceeding  the  officer  holds  the 
goodd)  to  the  plaintiff  in  the  present  suit,  when  such  otlicer  has  previously 
relinquished  the  attachment  lien  by  unlawfully  delivering  the  property  to 
an  agen*  of  plaintiff  in  attachment  proceedings.     Griswold  v.  Sundback  et 

al,  (on  rehearing),  ....  S.  D 00  N.  W.  10(58;  same  case,  4  S.  D.   441,   57 

N.  W.  339.  Further  Time— Motion— Attachment.  The  refusal  of  the 
court  to  grant  appellants  further  time  in  which  to  procure  affidavits  in  sup- 
port of  the  attachment,  though  not  in  harmony  with  the  usual  and  better 
practice,  is  held,  under  existing  circumstances,  not  sufficient  to  require  a  re- 
versal. Pirie  et  al  v.  Berg  et  al,  ....  S.  D.  ...  ,  64  N.  W.  1130.  Motion- 
Application  for  Affidavit  Before  Referee — Attachment.  It  is  not  error 
to  deny  an  application  for  an  order  based  upon  subdivision  5,  sec  5324  Comp. 
Laws,  compelling  persons  to  attend  before  a  referee  appointed  for  that  pur- 
pose, and  mak«  affidavits  resisting  a  motion  to  discharge  an  attachment, 
where  it  neither  appears  that  such  persons  have  refused  to  make  affidavits, 
nor  that  they  possess  any  knowledge  of  material  facts.  Pirie  et  al  v.  Berg 
etal,....S.  D 64N.  W.  1130. 

(f).     Injunction. 

Tax  Injunction— Invalidity  or  Fraud.  Courts  of  equity  should  in 
general  restrain  a  tax  collection  or  annul  tax  proceedings  only  where  the 
property  is  exempt  from  taxation,  or  the  tax  not  warranted  by  law,  or  the 
persons  assuming  to  assess  and  levy  are  without  authority,  or  where  the  tax 
officers  act  fraudulently;  and  in  addition,  plaintiff  must  bring  himself  within 
some  recognized  head  of  equity  jurisdiction.  Parrington  v.  New  England 
Investment  Co.  et  al,  1  N.  D.  102,  45  N.  W.  191;  St.  Peter's  Church  v.  Scott 
Co.,  12  Minn.  395  (Gil.  280);  Towle  v.  Holt,  15  N.  W.  203;  Miller  v.  Hurford, 
12  N.  W.  832;  Stockle  v.  Silsbee,  41  Mich.  615,  2  N.  W.  350;  Perkins  v.  Nu- 
gent, 45  Mich.  157,  7  N.  W.  757;  Welty  Assessm.  sec.  10;  1  Desty  Tax  508, 
509;  Bailey  v.  Fisher,  38  la.  229;  Norton  v.  Shelby  Co.,  118  U.  S.  425.  6  Sup. 
Ct.  1121;  Mining  Co.  v.  Auditor  General,  37  Mich.  391;  R.  R.  Co.  v. 
Frary,  22  111.  35;  Warden  v.  Supervisors,  14  Wis.  618;  City  of  Lawrence  v. 
Killam,  11  Kan.  375.  Absence  of  oath  to  assessment  roll  is  not  ground  for 
enjoining  proceedings.  Farrington  v.  New  England  Investment  Co.  et  al, 
supra;  Land  Co.  v.  Crete(Neb.),  7  N.  W.  859;  Morrison  v.  Hershire,  32  la. 
271;  Frost  v.  Flick,  1  Dak.  131,  46  N.  W.  508;  Challiss  v.  Com'rs,  15  Kan.  49; 
Fifield  V.  Marinette  Co.  (Wis.),  22  N.  W.  705;  Wis.  Cent.  Ry.  Co.  v.  Lincoln 
Co.  (Wis.)  30  N.  W.  619;  nor  is  fact  that  assessment  is  too  high,  or  that  the 
roll  was  not  returned  in  time.  Farrington  v.  New  England  Investment  Co. 
etal,  supra;  Welty  Assessm.  sec.  10;  Hutchinson  v.  Board  (la.)  23  N.  W. 
249;  Henkle  v.  Town  of  Keota  (la.),  27  N.  W.  250;  Ins.  Co.  v.  Pollak,  75  111. 
294;  State  v.  Jersey  City,  28  N.  J.  Law,  500.  Declaring  Tax  Void— Same 
Bule  as  Restraining  Collection.  The  same  equitable  rules  apply  in  an  ac- 
tion to  declare  the  tax  void  and  to  cancel  the  tax  certificate,  as  in  an  action 


ERROR  IN   LAW.  145 


to  restrain  the  collection  of  the  tax.  Farrington  v.  New  Eng-land  Invest. 
Co.  et  al,  1  N.  D.  102,  45  N.  W.  191;  Qity  of  Lawrence  v.  Killam,  11  Kan.  2d 
Ed.  375;  Stebbins  v.  Challiss,  15  Kan.  55;  Wood  v.  Helmer  (Neb.),  4  N.  W. 
968;  High  on  Inj.  sec.  485-6.  See  also,  on  the  general  propositions  sustained 
in  the  principal  case:  State  R.  R.  Tax  cases,  92  U.  S.  575;  Dows  v.  Chicago, 
11  Wall.  108;  Hannewinkle  v.  Georgetown,  15  Wall.  548;  Cummings  v.  Bank, 
101  U.  S.  153.  Same— Judgment  for  Legal  Taxes.  Held,  further,  that, 
instead  of  requiring  payment  of  legal  charges  as  a  condition  to  relief,  the 
trial  court  should  have  entered  judgment  against  applicant  for  amount  of 
legal  taxes.  Farrington  v.  New  England  Invest.  Co.  et  al,  supra.  Enjoin- 
ing Incumbrance — Void  Mortgage — Notice.  A  mortgage  executed  by  a 
party  enjoined  from  transferring  or  incumbering  his  property,  until  the  fur- 
ther order  of  the  court,  is  not  valid  as  against  the  interest  of  the  plaintiff  in 
the  injunction  suit,  in  the  hands  of  a  party  having  actual  notice  of  the  in- 
junction order  at  the  time  the  mortgage  was  executed.     Seaman  v.  Galligan 

et  al,  . . . .  S.  D ,  66  N.  W.  458;  1  High  Inj.  sec.   338;  2  Story  Eq.  Jur., 

908;  Greenwald  v.  Roberts,  4  Heisk.  494;  Willsie  v.  Ranch  Co.,  ....  S.  D. 
. . . . ,  63  N.  W.  546. 

(g).     Trial. 

Notice  of  Trial — Wrong  Date.  A  notice  of  trial  is  good  though  it 
state  the  wrong  day  of  the  month  as  that  of  commencement  of  the  term. 
Smith  V.  N.  P.  R.  R.  Co.,  3  N.  D.  17,  53  N.  W.  173;  Ins.  Co.  v.  Kelsey,  13 
How.  Pr.  535.  Business  at  Additional  Term,  Under  chap.  79, 
sec.  10,  Laws  1891,  N.  D.,  the  same  business  can  be  transact- 
ed at  an  additional  term  of  court  called  by  the  judge  as  at  the 
statutory  time;  new  cases  can  be  noticed  for  and  tried  at  such  additional 
term.  Smith  v.  No.  Pac.  R.  Co.,  3  N.  D.  17,  53  N.  W.  173.  Trial  at  Ad- 
journed Term — Judge  of  Other  Circuit.  A  circuit  judge  holding  court  in 
another  circuit  upon  request  of  the  judge  of  the  same  may  continue  the  term, 
and  conclude  trial  of  causes  for  unfinished  business  at  an  adjourned  term  of 

said  court.     Williams   v.  Williams,    S.  D ,   ^  N.  W.  38;  Riggs  v. 

Owen  (Mo.  Sup.),  25  S.  "W.  356.  Separate  Trial.  The  refusing  of  a  separate 
trial  in  a  civil  action  will  not  be  reviewed  on  appeal,  unless  injury  is  shown 
to  result  from  such  ruling.  Noyes  et  al  v.  Belding,  sheriff,  et  al,  5  S.  D. 
603,  59  N.  W.  1069;  sec.  5035  Comp.  Laws. 

Challenge — Immaterial  Error.  A  ruling  sustaining  a  challenge  to  a 
juror  for  cause,  although  not  justified  by  the  facts  disclosed  on  his  examina- 
tion, is  not  error  for  which  a  judgment  will  be  reversed,  when  he  plight 
have  been  challenged  peremptorily  by  the  same  party,  it  not  appearing  that 
defendant  was  prejudiced  thereby.  Herbert  v.  Northern  Pac.  Ry.  Co.,  3 
Dak.  38,  13  N.  W.  349;  Morrison  v.  Lovejoy,  6  Minn.  319,  (Gil.  224);  Atlas 
Min.  Co.  V.  Johnson,  23  Mich.  36.  Misconduct  of  Adverse  Counsel. 
10— TP 


146  CODE  OF  CIVIL  PROCEDURE. 

Where  a  jmrty  at  the  trial  is  prevented  from  having  a  fair  trial,  or  is  preju- 
diced in  any  of  his  rights  at  issue,  by  misconduct  of  his  adversary's  counsel, 
in  offering  incompetent  or  irrelevant  testimony,  containing  prejudicial  in- 
sinuations, or  by  slanderous  statements  to  the  jury,  and  which  in  fact,  or  pre- 
sumably influenced  the  jury,  a  now  trial  should  be  granted.  Burdick  v. 
Haggert,  4  Dak.  13,  22  N.  W.  589. 

Opening  Case — Omitted  Fact.  It  is  discretionary  with  the  court,  to 
permit  plaintiff,  after  having  rested,  to  introduce  further  evidence  tending 

to  prove  an  omitted  fact.    Johnson  v.  Gil  more,   S.  D ,  60  N.  W. 

1070;  Calkins  v.  Mining  Co.,  5  S.  D.  299,  58  N.  W.  797.  Offers  to  Prove— 
Reversal — Substantial  Injury.  The  matter  being  within  the  exercise  of 
judicial  discretion,  the  rulings  of  the  trial  court  upon  offers  to  prove  specific 
facts,  at  the  time  apparently  inadmissible,  will  not  be  disturbed  unless  sub- 
stantial injury  has  resulted  therefrom.      Fall  v.  Johnson,  ....  S.  D ,65 

N.  W.  909.  Excluding  Evidence— Oflfer  Deemed  Provable,  Where  the 
trial  court  in  excluding  evidence  asserts  that  plaintiff  cannot,  as  matter  of 
law,  recover  on  thetheory  he  is  pursuing,  he  is  not  bound,  in  absence  of  notice 
that  he  must,  to  offer  proof  of  other  allegations  of  his  complaint,  as  they  are 
deemed,  in  reviewing  such  ruling,  to  be  capable  of  proof,  and  that  plaintiff 
could  have  proved  them  had  he  not  been  met  by  such  ruling,  rendering  fur- 
ther evidence  without  force  in  the  case.     Brundage  v.  Mellon, N.  D. 

....,63N.  W.  209;  Loeb  v.  Willis,  100  N.  Y.  231,  2  N.  E.  177.  ftuestion 
for  Jury — Waiver.  If  the  question  of  an  agent's  authority  was  one  of  fact 
for  the  jury,  appellant  waived  its  submission  to  the  jury  by  treating  the  case 
as  presenting  questions  of  law  only,  and  moving  for  a  verdict  in  its  favor; 
and  the  court  having  adopted  appellant's  theory  that  the  case  presented 
questions  of  law  only,  the  fact  that  it  decided  the  law  questions  adversely 
did  not  relieve  appellant  from  the  effect  of  his  concession.  Grigsby  v.  W. 
U.  Tel.  Co.,  5  S.  D.  561,  59  N.  W.  734.  Must  Show  Plaintiff's  Title.  If  a 
plaintiff,  in  an  action  to  recover  real  property,  fails  to  show  his  own  title  or 
right  as  ground  of  recovery,  he  cannot  complain  that  the  evidence  does  not 
establish  defendant's  right  to  possession.  Evenson  v.  Webster  (on  rehear- 
ing), 5  S.  D.  266,  58  N.  W.  669. 

(h).     Defenses. 

Affidavit  of  Merits— Attorney.  An  affidavit  of  merits  by  an  attorney 
must  show  him  acquainted  with  the  facts.  Pettigrew  et  al  v.  City  of  Sioux 
Palls,  et  al,  5  S.  D.  646,  60  N  W.  27;  Ellis  v.  Jones,  6  How.  Pr.  296.  Ans- 
wer After  Time— Affidavit  of  Merits.  Where,  on  an  application  for  leave 
to  serve  an  answer  after  the  statutory  time  has  expired,  the  party  moving 
is  required  by  the  rules  of  court  to  serve  with  his  notice  of  motion  an  affi- 
davit of  merits  and  copy  of  proposed  answer,  if  he  fails  to  serve  either  the 

motion  is  properly  denied.     Searles  v.   Lawrence  et  al, S.  D ,65 

N.  W.  34.    Statute  of  Limitations— Void  Tax  Deed.    A  tax  deed  void  on 


ERROR  IN  LAW.  147 


its  face,  cannot  operate  to  set  the  statute  qf  limitations  in  motion.  Heger 
et  al  V.  DeGroat,  3  ....  N.  D.  354,  56  N.  W.  150;  sec.  1640  Comp.  Laws; 
Moore  v.  Brown,  11  How.  414;  Waterson  v.  DeVoe,  18  Kan.  223;  Hall  v. 
Dodge,  Id.  277;  Nichols  v.  McGlathery,  43  la.  189;  Burke  v.  Cutler  (la.),  43 
N.  W.  204;  Towle  v.  Holt  (Neb.),  15  N.  W.  203;  Sheehy  v.  Hines,  27  Minn. 
259,  6  N.  W.  781;  Hurd  v.  Brisner  (Wash.),  28  Pac.  371;  Bird  v.  Benlisa, 
142  U.  S.664, 12Sup.  Ct.  323.  Payment— Advances  to  Owner  on  Agency- 
Sale.  A  plea  of  payment  is  ordinarily  good  without  specifying  time,  place 
or  manner  thereof;  and  when  money  has  either  been  advanced  to  the  owner 
by  one  to  whom  he  has  delivered  property  for  the  purpose  of  sale,  with  the 
express  understanding  that  it  shall  be  deducted  from  the  proceeds  of  the 
sale  when  consummated,  or  when  he  has  directed  the  person  thus  intrusted 
with  the  property  to  pay  a  portion  of  such  proceeds  to  a  third  person,  from 
whom  he  had  obtained  money  on  account  of  the  delivery  and  prospective 
sale  of  his  property,  and  such  payment  has  actually  been  made,  the  facts 
and  circumstances  of  the  transaction  may  be  shown  under  a  plea  of  payment 
in  an  action  to  recover  the  amount  received  for  the  property  less  certain 

other  credits.     Fall  v.  Johnson,    S.  D ,  65  N.  W.  909;  2  Pars.  Cont. 

(6th  Ed.)  625;  Hughes  v.  Kellogg,  3  Neb.  195;  Max.  Code  PI.  495.  Ultra 
Vires— Bank  Purchasing  Note— Defense.  Want  of  authority  in  a  national 
bank  to  purchase  a  negotiable  note  cannot  be  used  by  the  maker  as  a  de- 
fense in  an  action  upon  it.     First  Nat.  Bank  of  Pierre  v.   Smith  et  al,  

S.  D ,  65  N.  W.  437.     Lease— Pledge— Plea  of  Lien.     Upon  trial  in 

claim  and  delivery,  a  lease  providing  for  purchase  of  hotel  furniture  by 
lessees,  and  for  holding  the  same  as  pledge  for  performance  of  the  terms  of 
the  lease  by  lessees,  being  introduced  by  plaintiff,  the  defendant,  lessor, 
may  avail  itself  of  the  stipulations  in  such  lease  establishing  its  lien  upon 
the  property  and  as  precluding  recovery  by  plaintiff,  without  pleading  the 

lien  affirmatively  in  defense.     E&shon  v.  Watertown  Hotel  Co.,   S.  D. 

,  63  N.  W.  229.     Purchase  Note— Warranty— Bona  Fide  Holder.     In 

an  action  on  a  note  given  for  purchase  price  of  a  horse,  the  defense  of  breach 
of  warranty  being  interposed  and  counterclaim  for  damages  for  communica- 
tion of  disease  of  the  horse  to  other  horses,  the  note  being  taken  by  agents 
of  plaintiff  who  supposed  it  was  taken  in  payment  for  machinery,  held,  that 
the  defense  of  breach  of  warranty  was  properly  interposed,  even  though 
plaintiff  took  the  note  from  his  agent  upon  settlement  of  agency  account  and 
gave  credit  for  full  amount  thereof  and  was  ignorant  of  the  transation  out 
of  which  the  note  arose,  and  that  plaintiff  was  not  a  bona  fide  holder  for 
value  of  the  note  as  commercial  paper.     McCormick  H.  M.  Co  v.  Taylor, 

N.  D 63  N.  W.  890;  sec.  4487  Comp.    Laws;  Rand.  Com.    Paper, 

sec.  988,  sec.  1875;  Aldrich  v.  Slockwell,  9  Allen  45. 

Motion  to  Dismiss— "Renewal  at  Close  of  Evidence."     A  motion  to 
dismiss  made  at  close  of  plaintiff's  case,  is  waived,  unless  renewed  after  all 


148  CODE  OF  CIVIL  PROCEDURE. 

evidence  is  in.'  Illstad  v.  Anderson,  1  N.  D.  167,  49  N.  W.  659.  Bowman 
V.  Eppinj^er,  1  N.  D.  21,  44  N.  W.  1000.  Fraudulent  Representations — 
Dismissing  Action.  In  an  action  for  damages  arising  from  fraudulent  rep- 
resentations of  the  defendant,  held,  under  the  facts  stated,  that  the  trial 
court  erred  in  dismissing  the  case  at  conclusion  of  plaintiff's  evidence,  the 
point  involving  the  weight  of  evidence  and   the  qnestion  whether  plaintiflf 

was  the  real  party  in  interest.     Davenport  v,  Buchanan  et  al, S.  D , 

61  N.  W.  47.  Submission  of  duestion  to  Jury — Nonsuit— Statute.  Our 
statutes  regulating  exceptions  and  new  trials  are  in  the  main  copied  from 
the  California  statutes;  there  the  practice  prevails  of  directing  non-suits, 
but  such  practice,  as  concerns  the  question  in  this  case,  (viz.  refusal  to  direct 
a  verdict,  or  to  submit  a  question  to  the  jury,)  is  substantially  the  same  as 
directing  a  verdict.  In  both  cases  the  court  passes  upon  the  legal  suffi- 
ciency of  the  evidence  to  warrant  a  judgment.  Sanford  v.  Bell,  2  N.  D.  6 
48  N.  W.  434;  Marshall  v.  Mfg.  Co.,  1  S.  D.  350,  47  N.  W.  290;  Hayne  New 
Tr.  &  App.  sec.  100,  p.  284. 

Res  Judicata — Former  Action. 

Former  Judgment — Purchase  Note — Rescission.  In  an  action  for 
purchase  price  of  a  harvester,  on  theory  of  a  breach  of  warranty  and  rescis- 
sion of  contract,  defendant  cannot  rely  on  a  judgment  against  plaintiff  in 
favor  of  the  indorsee  for  value  of  a  note  given  by  plaintiff  on  purchase  of  the 
harvester,  as  settling  the  issue  of  breach  of  warranty  and  rescission  of  con- 
tract, there  being  nothing  to  show  on  what  ground  the  judgment  was  ren- 
dered, Fahey  v.  Esterley  H.  M.  Co.,  3  N.  D.  220,  55  N.  W.  580,  and  cases 
there  cited;  but  the  judgment  in  the  present  suit  should  provide  that  upon 
return  of  the  note  in  question  to  plaintiff,  and  his  release  from  liability 
thereon  growing  out  of  any  judgment  recovered  thereon,  and  on  payment  of 
costs,  the  judgment  should  be  satisfied.  Id.  Thayer  v.  Manley,  73  N.  Y. 
305.  Res  Judicata — Same  Question.  When  it  is  not  certain  that  the  same 
question  was  determined  in  favor  of  the  party,  in  another  action,  who  relies 
on  the  judgment  therein  as  conclusive,  the  judgmentis  not  final  on  the  point. 
Fahey  v.  Esterley  Har.  M.  Co.,  3  N.  D.  220,  55  N.  W.  580;  in  such^cases  the 
judgment  is  final  only  as  to  matters  which  were  in  fact  determined  in  the 
former  case  and  adjudicated  by  the  judgment.  Id;  f'oie  v.  Patch,  132  Mass. 
105  and  cases  cited;  Stone  v.  Stamping  Co. (Mass.),  29  N.  E.  623;  Cromwell  v. 
County  of  Sac,  94  U.  S.  351;  Nesbit  v.  Independent  Dist.,  144  U.  S.  610,  12 
Sup.  Ct.  746:  Bell  v.  Merrifield,  109  N.  Y.  202,  16  N.  E.  55;  Russell  v. 
Place,  94  U.  S.  606;  Stowell  v.  Chamberlain,  60  N.  Y.  272;  Cook  v.  Burnley, 
45  Tex.  97;  McDowell  v.  Langdon,  3  Gray  513;  Downer  v.  Shaw,  22  N.  H. 
277;  Chrisman  v.  Harman,  29  Grat.  494.  Estoppel  by  Former  Judgement 
— Notes.  In  an  action  on  a  judgment  based  on  promissory  notes,  where  it 
appeared  that  in  the  former  action,  on  the  notes,  defendants  had  answered 
and  proved  that  said  notes  had  been  merged  in  a  judgment  in  a  former  ac- 


ERROR  IN  LAW.  149 


tion  between  the  parties,  which  defense  resulted  in  a  judgment  of  dismissal, 
held,  defendants  are  estopped  from  denying-  the  validity  of  such  judgment. 
J.  I.  Case  T.  M.  Co.  v.  Pederson  et  al,  ....  S.  d!  . . , .,  60  N.  W.  747;  White 
V.  Coatsworth,  6  N.  Y.  137;  Woodhouse  v.  Duncan,  106  N.  Y.  527,  13  N.  E. 
334;  Pray  v.  Hegeman,  98  N.  Y.  351;  Dunham  v.  Bower,  77  N.  Y.  76;  Davis 
V.  Tallcot,  12  N.  Y.  184;  Rogers  v.  Higgins,  57  111.  244.  Former  Party  De- 
fendant. In  a  former  action  plaintiff  sued  a  county  and  city  to  enjoin  siile 
of  lands  for  taxes  and  to  annul  the  tax  record;  lield,  that  had  judgment  been 
entered  it  would  have  been  ineffectual,  as  the  county  treasurer  was  the 
proper  party  defendant.  Bode  v.  New  England  Inv.  Co.,  1  N.  D.  121,  45  N. 
W.  197;  nor  would  such  judgment  bar  this  action,  the  parties  defendant  be- 
ing different  and  not  in  privity  with  each  other.  Id.  Former  Action  Pend- 
ing— Foreign  Garnislunent — Parties.  In  an  action  in  one  state,  the  pend- 
ency of  garnishment  proceedings  against  the  same  corporation  which  is 
defendant,  in  another  state,  is  no  defense  when  it  appears  that  at  the  time 
they  were  commenced,  defendant  in  present  suit  knew  that  the  defendant  in 
the  action  in  which  said  proceedings  were  instituted  did  not  own  the  claim 

against  the  present  defendant.     Purcell  v.  St.  P.  P.  &  M.  Ins.  Co., N.  D. 

64  N.  W.  943;  Mansfield  v.  Stevens  (Minn.),  16  N.  W.  455;  Williams  v. 

R.  R.  Co.  (Minn.),  6  N.  W.  445;  MacDonald  v.  Kneeland,  5  Minn.  352  (Gil. 
283);  Lewis  v.  Lawrence  (Minn.),  15  N.  W.  113;  Williams  v.  Ingersoll,  89  N. 
Y.  508.  Foreclosure — Allegation  of  Inferior  Interest — Res  Judicata.  In 
an  action  to  foreclose  a  mechanic's  lien,  one  claiming  an  interest  in  the 
property  was  made  a  defendant,  the  allegation  being  that  such  defendant  "has 
or  claims  to  have  some  interest  in  the  land,  *  *  *  but  she  has  no  claim  prior 
or  superior  to  that  of  plaintiffs,"  and  such  allegations  were  admitted  in  her 
answer,  and  she  failed  to  set  up  any  superior  or  paramount  title  to  the  prop- 
erty; held,  she  is  concluded  by  a  verdict  of  a  jury  in  such  action  finding  all 
issues  for  plaintiff,  and  a  judgment  rendered  thereon,  and  cannot  be  permit- 
ted to  litigate  or  dispute  the  title  as  against  one  claiming  the  property  by 

virtue  of  a  sale  under  said  judgment.     Southard  v.  Smith   et  al,   S.  D. 

,  66  N.  W.  316;    Wilts.  Mort.  Forec.  sec.  421;  Helck  v.  Reinheimer,  105 

N.  Y.  470,  12  N.  E.  37;  Wolfinger  v.  Betz,  66  la.  594,  24  N.  W.  228;  Hemp- 
stead V.  City  of  Des  Moines,  63  la.  36,  18  N.  W.  676;  and- other  Iowa  casea 
there,  cited. 

(i),     Judgment — Decree. 

Default  Money  Judgment— Notice  of  Application.  Where  a  party 
applies  for  judgment  under  first  clause  of  subd.  1,  sec.  5025  Comp.  Laws, 
and  the  action  is  one  arising  on  contract  for  money  only,  and  the  complaint 
is  duly  sworn  to,  and  proof  of  the  service  required  by  the  section  is  made, 
and  no  answer  received,  the  defendant,  who  has  not  answered,  but  has  ap- 
peared, is  not  entitled  to  notice  of  such  application.  Searles  v.  Lawrence  et 
al,  . . .  .S.  D 65  N.  W.  34;  Dix  v.  Palmer,  5  How.  Pr.   233;  Southworth 


150  CODE  OF  CIVIL  PROCEDURE 

V.  Curtis,  6  How.  Pr.  271;  Wait's  Code  sec.  246,  note  g.  Judgment  Con- 
fessed—Corporation — Trust  Fund— ^Creditors.  The  assets  of  a  corporation 
for  profit  being  a  trust  fund  for  its  creditors,  its  officers  being  unauthorized  to 
diminish  its  capital  in  anticipation  of  insolvency,  and  release  its  stockhold- 
ers from  liability,  resulting  in  defeating  rights  of  bona  fide  creditors,  a 
judgment  confessed  in  favor  of  persons  who  loaned  to  its  directors  money 
for  the  purpose  of,  and  with  actual  knowledge  that  the  funds  advanced  were 
to  be  used  in,  the  purchase  of  shares  in  itself,  is  void  as  to  such  creditors, 
because:  (a)  When  insolvency  occurs,  a  corporation  has  no  authority  to 
prefer  creditors:  (b)  A  corporation,  as  such,  has  no  power  to  create  a  debt 
by  borrowing  money  with  which  to  purchase  its  own  stock;  Kotlam,  J.  dis- 
senting.    Adams  &  Westlake  Co.  v.  Deyette  et  al  (on  rehearing), S.  D. 

....,66N.  W.  471. 

Entry  of  Judgment— Stay.  It  is  error  to  enter  judgment  on  verdict 
when  a  stay  of  all  proceedings  has  been  ordered,  if  the  entry  of  judgment  is 
within  the  time  in  which  the  stay  order  is  operative.  Uhe  v.  Chi.  Mil.  & 
St.  P.  Ry.  Co.,  4  S.  D.  505,  57  N.  W.  484;  Morewood  v.  Hollister, 
6  N.  Y.  3  19;  Gordan  v.  State,  4  Kan.  501;  And  Law  Diet,  p. 
16;  Yeager  v.  Wright,  112  Ind.  235,  13  N.  E.  707;  said  decis- 
ions construing  the  term  "proceedings."  Final  Judgment — Order 
for  Entry.  Where  a  demurrer  to  an  answer  was  overruled,  and  in 
the  same  order  the  demurrer  is  sustained  to  the  complaint,  with  a  provis- 
ion for  dismissal  with  costs  to  be  taxed,  unless  plaintiff  amends  within  20 
days,  such  order  is  not  a  final  judgment  in praesenti,  but  an  order  that  judg- 
ment might  be  entered  in  future  upon  a  specified  contingency,  and  cannot  be 
converted  into  a  judgment  by  the  voluntary  act  of  the  clerk.  Bode  v.  New 
England  Investment  Co.,  1  N.  D.  121,  45  N.  W.  197;  Comp.  Laws,  sees.  5101, 
5102,  5105,  5024,  5095. 

Attachment  Sale — Judgment  Need  Not  Direct.  A  judgment  in  a' suit 
aided  by  attachment  need  not  direct  a  sale  of  the  property  in  satisfaction 
thereof,  as  the  law  explicitly  imposes  that  duty  upon  the  attaching  officer. 
Iowa  State  Sav.  Bank  v.  Jacobson, S.  D ,  66  N.  W.  435:  Ander- 
son v.  Goff  (Cal.),  13Pac.  73;  Low  v.  Henry,  9  Cal.  538;  Wap.  Attachm. 
510.  Election  Contest— Judgment  Self-Excusing.  The  right  to  an  office 
being  the  only  issue  determined  by  a  statutory  contest  proceeding,  the  judg- 
ment is  self-executing,  except  as  to  costs,  and  an  appeal  from  the  judgment 
does  not  stay  or  obstruct  the  right  of  the  successful   party  to  perform  duties 

and  receive  emoluments  thereof.     Fyypaa  v.   Brown  Co.,   S.  D ,62 

962;  Jayne  V.  Drorbaugh,  63  la.  711,  17  N.  W.  433;  Allen  v.  Robinson,  17 
Minn.  113  (Gil.  90);  Honey  v.  Davis,  38  Tex  63;  Payne  on  Elec.  852;  sec. 
1497,  5226  Comp.  Laws. 

Correctness  Presumed.  Every  presumption  is  in  favor  of  the  correct- 
ness of  the  judgment  of  a  court  of  general  jurisdiction  until  the  contrary  af- 


ERROR   IN    LAW.  151 


firmatively  appears.  Kent  v.  Dak.  F.  &  M.  Ins.  Co.,  2  S.  D.  .SOO,  50  N.  W. 
85;  Gemmell  v.  Rice,  13  Minn.  400,  (Gil.  371);  Williams  v.  McGrade,  18 
Minn.  46  (Gil.  39);  Jorgenson  v.  Griffin,  14  Minn.  464  (Gil.  346);  Holmes  v. 
Campbell,  12  Minn.  221  (Gil.  141);  Piper  v.  Packer,  20  Minn.  274  (Gil.  245); 
Blake  V.  Mfg.  Co.,  77  N.  Y.  626;  Relnig  v.  Hecht,  68  Wis.  212,  16  N.  W.- 
548;  Credit  Poncier  v.  Rogers,  10  Neb.  184,  4  N.  W.  1012;  Carruthers  v. 
Hensley,  (Cal.).  27  Pac.  411.  Presum^ptions  Supply  Omissions.  The  pre- 
sumption which  goes  to  support  a  judgment  on  appeal  will  supply  omis- 
sions, but  cannot  prevail  against  positive  error.  John  A.  Tallman  Co.  v. 
Savage  et  al,  5  S.  D  496,  59  N.  W.  882. 

Setting  Aside  Judgement— Defense — Stipulation.  To  justify  a  court 
in  setting  aside  a  judgment  under  sec.  4939  Comp.  Laws,  the  mistake,  inad- 
vertance  or  excusable  neglect,  and  a  probable  meritorious  defense,  must  ap- 
pear. Pettigrew  et  al  v.  City  of  Sioux  Falls  et  al,  5  S.  D.  646,  60  N.  W.  27. 
12  Am.  &  Eng.  Ency.  of  law,  p.  139,  note  and  cases  cited;  15  Id.  p.  382;  and 
an  order,  in  an  application  under  that«ection,  refusing  to  set  aside  a  judg- 
ment entered  into  upon  stipulation  of  parties,  will  not  be  reversed  where 
the  record  shows  neither  the  answer  nor  suggests  its  contents,  nor  contains 
an  affidavit  of  merits.  Id.  Neglect  of  Counsel.  It  was  held,  under  the 
facts  stated,  that  the  judgment  in  this  case  should  have  been  opened  for  ne- 
glect of  defendant's  counsel.  Searles  v.  Christensen  5  S.  D.  650, 60  N.  W.  29; 
Millspaugh  v.  McBride,  7  Paige  509;  Sharp  v.  N.  Y.,  31  Barb.  578;  Hanson  v. 
Michelson,  19  Wis.  525;  Ordway  v.  Suchard.  31  la.  481;  Griel  v.  Vernon,  65 
N.  C.  76;  Allen  v.  Hoffman,  12  III.  App.  573;  Baxter  v.  Chute,  50  Minn.  164, 
52  N.  W.  379;  Whereatt  v.  Ellis,  70  Wis.  207,  35  N.  W.  314;  Black,  Judgm. 
sec.  341;  Bradford  v.  Coit,  77  N.  C.  72;  Wynne  v.  Prairie,  86  N.  C.  75;  Tay- 
lor V.  Pope,  (N.  C),  11  S.  E.  259;  Oil  Co.  v.  Lee,  1  S.  D.  531,  47  N.  W.  955. 
Authority  of  Attorney.  Where  new  attorneys  appear  and  move  to  set 
aside  a  judgment  under  sec.  4939  Comp.  Laws,  an  objection  made  for  the 
first  time  in  this  court  that  such  attorneys  have  no  authority  to  appear,  will 
not  be  entertained.  Searles  v.  Christensen,  5  S.  D.  650,  60  N.  W.  29. o Judg- 
ment— Vacation  of  By  Justice — Mistake,  Etc.  Under  sec.  6065  Comp. 
Laws,  a  justice  of  the  peace  may  vacate  and  set  aside  a  judgment  by  default 
taken  against  a  party  by  mistake,  surprise,  inadvertance,  or  excusable  neg- 
lect.    Perrott  V.  Owen,  J.  P.,  ....    S.    D ,  64  N.  W.   526.     Modifying 

Decree  in  Part— Alimony.  The  courts  have  power  to  modify  or  set  aside 
that  part  of  a  decree  of  divorce  providing  for  custody,  support  and  mainten- 
ance of  minor  children,  under  changed  circumstances  of  the  party.  Green- 
leaf  V.  Grtenleaf,  ....  S.  D ,  61  N.  W.  42;  sees.  2582,  2584  Comp.  Laws. 

(j).     New  Trial. 

Motion  Unnecessary  When.  Errors  of  law  occurring  at  the  trial, 
and  duly  excepted  to,  may  be  reviewed  in  this  court  when  presented  by  a 
proper  bill  or  statement,  on  appeal  from  the  Judgnient,  although  no  motiop 


152  CODE  OF  CIVIL  PROCEDURE. 


for  a  new  trial  was  made  in  the  court  below.  Jones  Lura.  &  Mercantile  Co. 
V.  Faris,  5  S.  D.  348,  58  N.  W.  813;  Brown  v.  Tollos,  7  Cal.  398;  Carpentier 
V.  Williamson,  25  Cal.  167;  Caldwell  v.  Parks,  47  Cal.  640;  Haynos  New  Tr. 
&  App.  sec.  100;Earp.  v.  R.  R.  Co.,  12  Ohio  St.  621.  Motion  Unnecessary  to 
Review  Court  Errors.  It  is  not  necessary  to  lay  a  foundation  to  bring  a  case 
into  the  Supreme  Court  for  review  of  errors  by  the  trial  court,  that  a  mo- 
tion for  a  new  trial  be  made  in  the  court  below.  Waldron  v.  Evans,  1  Dak. 
10, 46  N.  W.  607.  Review  of  Court's  Charge  Without  Motion  For.  An  er- 
ror in  the  charge  of  the  court  to  the  jury  can  be  reviewed  on  appeal  from 
the  judgment  without  a  motion  for  new  trial  being  made.     McPherrin  v. 

Jones, N.  D ,  65  N.  W.  685.     Review  of  Errors  Without  Motion 

For.  On  appeal  from  a  judgment,  upon  bill  of  exceptions  and  judgment 
roll,  this  court  will  review  alleged  "errors  of  law  occurring  at  the  trial," 
without  a  motion  for  a  new  trial.  Sandford  v.  Bell  et  al  2  N.  D.  6,  48  N.  W. 
434;  Cravens  v.  Dewey,  13  Cal.  42;  Walls  v.  Preston,  25  Cal.  61;  Donahue 
v.  Gallavan,  43  Cal.  576;  Caldwell  v.  Parks,  47  Cal.  642;  Levy  v.  Getleson, 
27  Cal.  685;  Hayne  New  Tr.  &  App.  sec.  112,  p.  311;  Nichols  v.  Bruns,  5  Dak. 
28,  37  N.  W.  753;  sec.  5094  Comp.  Laws.  New  Trial— Appeal  From  Order 
is  Siirplusage,  When.  On  an  appeal  from  judgment,  and  assignment  of 
error  upon  an  order  on  motion  for  a  new  trial,  no  appeal  from  the  order  is 
necessary,  and  if  taken  in  connection  with  appeal  from  the  judgment,  will 

be  considered   surplusage.     Granger    v.    Roll   et  al,    S.    D , 

62  N.  W.  970;  Williams  v.  Williams,  ....  S.  D ,  61  N.  W.  38.  Re- 
view— Error  of  Law,  Involves  Law  Not  Discretion.  A  motion  for  a 
new  trial  on  the  ground  of  "errors  in  law  occurring  at  the  trial" 
involves  only  the  correctness  of  the  court's  rulings  and  its  decis- 
ion thereon  will  be  reviewed  here  as  a  question  of  law  only,  and  not  as 
involving  discretion  of  the  court.  Aultman  &  Taylor  Co.  v.  Gunderson  et  al, 
....  S.  D.  ...  ,  60  N.  W.  859;  Sandmeyerv.  Ins.  Co.,  2  S.  D.  346,  50  N.  W. 
353;  0'Brien>.  Brady,  23  Cal.  243;  Cochran  v.  O'Keefe,  34  Cal.  554;  Hinkle 
V.  R.  R.  Co.,  55  Cal.  627.  Denying'  New  Trial — Review  as  Intermediate 
Order.  An  order  denying  a  new  trial,  made  before  judgment,  is  reviewable 
on  an  appeal  from  the  judgment  as  an  intermediate  order,  when  error  is  as- 
signed upon  making  of  such  order.   Granger  v.  Roll  et  al, S.  D ,  62  N. 

W.  970;  the  corresponding  sections  of  the  Wisconsin  and  California  statutes 
compared  and  their  differences  commented  upon;  Id.  New  Trial  Without 
Authority.  After  hearing  a  motion  for  judgment  on  the  verdict,  the  court 
denied  the-motion,  and  in  its  order  also  directed  that  the  verdict  be  set 
aside,  and  granted  a  new  trial;  a  bill  of  exceptions  having  been  allowed 
when  said  motion  was  determined,  the  order  being  predicated  upon  error 
as  shown  in  the  bill  of  exceptions.  No  application  was  ever  made  for  a  new 
trial,  and  no  notice  of  intention  served.  Held,  that  the  order  vacating  the 
verdict  and  granting  a  new  trial  was  without  authority  of  law  and  is  rever- 
sible error.     Gould  v.  Duluth  &  Dak.  E.  Co.,  2  N.  D.  216,  50  N.  W.  969. 


ERROR  IN   LAW.  153 


(k).     Execution. 

Levy— Actual  Possession— Purchaser.  To  make  good  a  levy  under 
attachment  the  officer  must  take  actual  possession  of  property  as  far  as  prac- 
ticable, and  enforce  dominion  over  it  adverse  to  the  attachment  debtor,  and 
must  as  against  a  subsequent  purchaser,  maintain  possession  visibly  adverse; 
and  the  levy  in  this  case  wras  insufficient,  the  property  being  left  in  the  debt- 
or's building  for  over  three  months.  Jones  Lum.  &  Mer.  Co.  v.  Faris,  5  S. 
D.  348,  60  N.  W.  403;  Bagley  v.  White,  4  Pick.  395;  Sanderson  v.  Edwards, 
16  Pick.  144;  Flanagan  v.  Wood,  33  Vt.  332;  Drake,  Attachm.  sec.  292  a. 
Money  on  Execution — Divestiture  of  Subject-Matter — Judgment  Va- 
cated. Where  an  execution  was  levied  upon  money  in  defendant's  posses- 
sion, and  taken  by  the  officer,  who  satisfied  the  judgment  and  deposited  the 
money  to  his  own  credit  in  defendant's  bank,  taking  negotiable  certificate 
therefor  which  was  transferred  by  endorsement  to  plaintiff  and  placed  to  his 
credit  in  said  bank  subject  to  check,  part  of  which  was  paid  out  on  plaint- 
iff's check,  the  bank  refusing  to  honor  a  check  for  the  balance,  and  the 
court  vacated  the  judgment  to  allow  a  defendant  to  answer,  held,  in  absence 
of  stay  of  execution  or  order  of  restitution,  that  defendant  bank  was  legally 
divested  of  the  subject-matter  of  the  suit,  and  not  entitled  to  withhold  the 

money  from  plaintiff.     Martin  v.  Minnekahta  State  Bank, S.  D ,64 

N.  W.  127.  Void  Mortgage — Tender  on  Levy — Indemnity.  Sec.  4389 
Com.  Laws,  relating  to  tender  by  officer  of  amount  of  a  mortgage  debt  be- 
fore levying  on  personalty,  has  no  application  to  a  mortgage  fraudulent  and 
void  as  to  mortgagor's  creditors.  Jewett  et  al  v.  Sundback,  sheriff,  5  S.  D. 
Ill,  58  N.  W.  20.  When  an  officer  is  directed  by  judgment  creditor  to  levy 
an  execution  in  his  hands  upon  specified  property,  and  gives  indemnity  if 
requested,  he  must  levy  upon  the  property  though  described  in  a  chattel 
mortgage  apparently  valid.  Id.;  Meechem  Pub.  Off.  sees.  749,  751;  Mar- 
shall V.  Hosmer,  4  Mass.  63;  Bond  v.  Ward,  7  Mass.  123.  Judgment  Sale — 
Re-Sale  After  Redemption.  Where  property  of  the  j  udgment  debtor  has  been 
sold  for  less  than  the  amount  of  the  judgment,  and  redeemed  from  such  sale 
by  the  judgment  debtor,  the  property  may  again  be  sold  on  a  second  execu- 
tion issued  on  the  same  judgment  for  the  balance  due  thereon.     Seaman  v. 

Galligan  et  al, S.  D ,66  N.  W.  458;  sec.  5150  Comp.  Laws;  Bodine 

v,  Moore,  18  N.  Y.  347;  Phyfe  v.  Riley,  15  Wend.  248;  Warren  v.  Fish,  7 
Minn.  432  (Gil.  347);  Settlemire  v.  Newsome,  10  Ore.  446;  Boyce  v,  Wight, 
2  Abb.  N.  C.  163. 

Civil  Execution — Coercive  Order.  When  a  party  refuses  to  do  some- 
thing he  is  ordered  to  do  for  benefit  of  the  opposite  party,  the  order  is 
looked  upon  as  a  civil  execution,  though  the  proceedings  are  carried  on  in 
the  shape  of  a  criminal  process,  and  the  order  is  not  punitive,  but  coercive. 
State  V.  Knight  ct  al,  3  S,  D.  509,  54  N,  W.  412;  Blackstone's  Com.  book  4, 
lOi— T  P 


154  CODE  OF  CIVIL  PROCEDURE. 

4,  ch.  20;  and  see  New  Orleans  v.  Steamship  Co.,  20  Wall.  387;  R.  R.  Co.  v. 
Wheeling,  13  Grat.  67;  Ex  parte  Kearney,  7  Wheat.  38;  Stuart  v.  People,  3 
Scam.  395;  Ex  parte  ThatcTier,  2  Gilm.  (111.)  170;  Crook  v.  People,  10  111. 
536;  Fischer  v.  Hayes,  6  Fed.  63;  but  if  the  contempt  coasists  in  doing  a  for- 
bidden act  injurious  to  the  opposite  party,  the  process  is  criminal,  and  con- 
viction is  followed  by  fine  and  imprisonment  or  both,  which  is  purely  puni- 
tive. Id.  Execution  Against  Person — "Judgment  Debtor."  In  an  action 
in  which  the  defendant  might  have  been  arrested  under  sec.  4945  Comp. 
Laws,  execution  may  issue  "against  the  person  of  the  judgment  debtor." 

Winton  v.  Knott,   sheriff,  . . . .  S.  D ,  63  N.  W.  783;  Comp.  Laws  sec. 

5115;  and  if  in  such  action  judgment  is  against  plaintlfT  for  costs,  he  becomes 
the  "judgment  debtor,"  and  is  subject  to  "execution  against  the  pers^on"; 
Id.;  Miller  v.  Scherder,  2  N.  Y.  264;  Parce  v.  Halbert,  1  How.  Pr.  235;  Par- 
ker v.  Spear,  62  How.  Pr.  394;  Kloppenberg  v.  Neefus,  4  Sandf.  655;  Phil- 
brook  V.  Kellogg,  21  Hun,  238.  Unauthorized  Execution  Sale — Publica- 
tion— Trespass.  Under  a  statute  requiring  public  notice  to  be  given  for  at 
least  ten  days  before  an  officer  can  sell  property  seized  on  execution,  a  sale  and 
delivery  thereof  upon  eight  days'  notice  is  unauthorized,  and  renders  the  seiz- 
ure and  all  subsequent  proceedings  the  acts  of  a  ti-espasser  from  the  begin- 
ning.   Bowman  v.  Knott,  ....  S.  D ,  66  N.  W.  457;  Griswold  v.  Sund- 

back,  ....  S.  D ,  60  N.  W.  1068;  Carrier  v.   Esbaugh,   70  Pa.    St.  239; 

Smith  V.  Gates,  21  Pick.  55;  sec.  6141,  6117,  Comp.  Laws. 

(I).     Exemptions. 

Debtor  to  Indicate  Exemptions.  An  execution  debtor  must  indicate 
to  tbe  ofiBcer  the  specific  property  claimed  as  exempt;  which  requirement  is 
satisfied  by  a  selection  which  the  officer  ought,  under  the  circumstances,  to 
understand.  Northrup  v.  Cross,  sheriflf,  2  N,  D.  433,  51  N.  W.  718;  Thomp. 
Homest.  &  Exemp.  sec.  834,  820,  et  seq.;  Zielke  v.  Morgan,  50  Wis.  560,  7 
N.  W.  651.  Exemptions — Wife  of  Debtor,  Our  exemption  law  was  de- 
signed for  the  benefit  of  the  debtor  and  family  and  should  be  liberally  con- 
strued, and  extends  to  the  wife  of  the  partnership  debtor,  and  she  may  make 
claim  of  exemptions  if  her  husband  fails  to  do  so.  Noyes  et  al  v.  Belding, 
sheriflf,  et  al,  5  S.  D,  603,  59  N.  W,  1069;  Stewart  v.  Brown,  37  N.  Y.  350; 
Blanchard  v.  Paschal,  68  Ga.  32;  Scott  v.  Kenan,  94  N.  C.  296;  Skinner  v. 
Shannon,  44  Mich.  86,  6  N.  W.  108;  O'Gorman  v.  Fink,  67  Wis.  649,  16  N. 
W,  771;  Servanti  v.  Lusk,  43  Cal.  238;  Sutherland  St.  Const,  p.  474;  and  32 
days'  time  after  notice  of  levy,  was  held  a  reasonable  time  within  which  the 
wife  might  make  the  claim  of  exemptions.  Noyes  et  al  v.  Belding,  sheriff, 
et  al  supra;  Freem.  Ex'ns  212;  Shepard  v.  Murrill,  90  N.  C.  208;  Chesley  v, 
Francisco,  12  Neb.  626,  12  N.  W.  94;  Robinson  v.  Hughes  (Ind.  Sup.),  20  N. 
E.  220;  Rice  v.  Nolan,  33  Kan.  28,  5  Pac.  437;  Daniels  v.  Hamilton,  52  Ala. 
108;  Thomp.  Homest.  &  Ex.  839;  State  v.  Emmerson,  74  Mo.  607. 

Exemptions— Cannot  Be  Fraudulently  Alienated.  Possession  of 
exempt  property  creates  no  fictitious  or  delusive  credit,  and  is  not  suscepti- 


ERROR  lii  LAW.  l66 


ble  of  being  fraudulently  alienated  or  disposed  of  to  the  prejudice  of  a  cred- 
itor. Noyes  et  al  v.  Belding,  sheriff,  et  al,  5  S.  D.  603,  59  N.  W.  1069;  Bank 
V.  North,  2  S.  D.  480,  51  N.  W.  96;  Bates  v.  Callender,  3  Dak.  256,  16  N.  W. 
506;  State  v.  Carson,  (Neb.),  43  N.  W.  361;  Sanoner  v.  King  (Ark.),  5  S.  W. 
327;  Airey  v.  Buchanan  (Miss),  1  So.  101;  Sears  v.  Hanks,  14  Ohio  St. 
298;  McAbe  v.  Thompson  (Minn.),  6  N.  W.  479;  Elder  v.  Williams,  16  Nev. 
416;  Vaughn  v.  Thompson,  17  111.  78;  Bell  v.  Devore,  96  111.  217;  1  Freem. 
Ex'ns  214,  and  cases  cited.  Homestead —Locus  of  Office  Holder.  Upon 
the  question  of  residence,  involving  homestead  rights,  it  is  competent  to 
show  that  a  person  was  elected  to,  qualified,  and  held  public  office  to  which 
he  would  not  have  been  eligible  had  his  residence  been  upon  the  premises  in 

question.     Clark   v.  Evans  et  al, S.  D ,  60  N.  W.  862;  Abb.  Tr.  Ev. 

108,  and  cases  cited.-  Fraud  Upon  Creditors— Homestead.  Fraud  upon 
creditors  cannot  be  predicated  upon  the  disposition  of  a  homestead.  Kvello 
et  al  V.  Taylor,  . . . .  N.  D ,  63  N.  W.  889. 

(m).     Appeals. 

Appeal  From  Judgment  Alone — New  Trial^Review.  An  appeal 
from  the  judgment  alone  does  not  bring  to  this  court  for  review  an  order  de- 
nying or  granting  a  new  trial  made  after  judgment.     Gade  v.  Collins  et  al; 

. . .  .S.  D ,  66  N.  W.  466;  Pierce  v.  Manning,  2  S.  D.  517,  51  N.  W.  332. 

Questions  For  Review — Statute  Construed.  The  last  clause  of  sec.  5237 
Comp.  Laws,  relating  to  review  on  appeal  from  judgment  on  trials  by  court 
or  referee,  requires  this  court  to  review  questions  of  fact  as  well  as  law. 
Randall  et  al  v.  Burke  Tp.  et  al  4  S.  D.  337,  57  N.  W.  4.  The  entire  chap- 
ter, including  sec.  5237  Comp.  Laws,  was  copied  substantially  from  the  Wis- 
consin statutes  and  has  been  construed  by  the  Wisconsin  court;  Id.  Snyder 
V.  Wright,  13  Wis.  689;  Fisher  v.  Trust  Co.,  21  Wis.  73.  Review  on  Ex- 
ceptions to  Findings — De  Novo.  This  court  is  required  upon  appeal,  un- 
der sec.  25,  chap.  120,  laws  of  1891,  to  i-eview  questions  of  fact  when  excep- 
tions to  the  findings  are  taken,  but  will  not  try  the  case  de  novo.  Jasper  v. 
Hazen,  4  N.  D.  1,  58  N.  W.  454;  Comp.  Laws  sec.  5237.  Appellate  Trial 
on  Different  Theory.  A  case  cannot  be  tried  on  one  theory  of  defendant's 
liability,  pursuant  to  the  complaint,  and  in  this  court  on  appeal  on  a  differ- 
ent theory  not  indicated  in  the  complaint.     Aultman  «&  Taylor  Co.  v.  Gun- 

derson  et  al,  . . . .  S.    D 60  N.  W.  859;  Brooks    v.   Yocum,  42   Mo. 

App.  516;  Ag'l.  Works  v.  Hooks  (la.),  49  N.  W.  61;  Brunfield  v.  Mf'G. 
Co.  (Com.  PI.  N.  Y.),  23  N.  Y.  Supp.  1025.  Rehearing— Immaterial 
Constitutional  Question.  This  court  will  not  consider,  and  therefore 
will  not  allow  a  rehearing  for  the  discussion  of,  the  constitutionality  of 
a    law    in    a    respect    or    particular    not    affecting     the    controversy  to 

be  decided.     Valliar  v.  Brakke  (on  rehearing),   S.  D ,  64  N.  W. 

1119. 

Certiorari — Adequate  Remedy — Appeal.     Certiorari  will  not  lie  where 
the  law  affords  a  plain,   speedy,  and  adequate  remedy.     Perrott  v.   Owen, 


m. 


156  CODE  OF  CIVIL  PROCEDURE. 

Justice  of  the  Peace,  ....  S.  D ,  64  N.  W.   526;  sec.  5.507i^Comp.  Laws; 

Id.  sees.  6129,  6130;  Stevens  v.  Ross,  1  Cal.  94;  Hallock  v.  Jaudin,  34  Cal. 
172;  Rickey  v.  Superior  Court,  59  Cal.  661;  Burnham  v.  Turner,  14  Wid. 
622;  State  v.  Goodrich,  15  Wis.  445;  Laufferty  v.  Prickett,  50  Ind.  24;  But- 
ler V.  Heeb,  38  la.  429;  Ry.  Co.  v.  Forbes,  37  Kan.  445,  15  Pac.  595;  Pearson 
V.  Carson,  69  Mo.  569;  12  Am.  &  Eng.  Ency.  Law,  483  and  cases  cited;  and 
appeals  from  inferior  courts  are  regarded  with  favor,  no  distinction  being 
recognized  between  parties  defaulting  and  those  appearing  in  the  action;  Id; 
and  an  appeal  lies  from  a  default  judgment  under  section  6129  Comp.  Laws. 
Perrott  v.  Owen,  J.  P.,  supra. 

Appeal  From  Probate  Coiirt — Re-Trial  When.  Upon  appeal,  on 
questions  of  both  law  and  fact,  to  circuit  court  from  action  of  probate  court 
in  app>ointing  guardian,  the  circuit  court  should  retry  the  case  and  pro- 
nounce judgment.    Engle  V.   Yorks,  S.  D ,  64  N.  W.  132;  Goss  v. 

Stone,  63  Mich.  319,  29  N.  W.  735;  In  re  Leonard's  estate  (Mich.),  54  N.  W. 
1082;  Broadwater  v.  Richards,  (Mont.),  2  Pac.  544;  Comp.  Laws  sec.  5976; 
and  in  such  case  the  circuit  court  is  not  confined  to  affirming,  reversing  or 
modifying  the  judgment  below,  as  when  the  appeal  is  upon  "questions  of 
law  alone."  Id;  Haynes'  New  Tr.  «fe  App.  sec.  234.  Appeal  From  Probate- 
Jury's  Answers  as  Findings— Judgment.  When,  upon  trial  in  circuit 
court  on  appeal  of  questions  of  law  and  fact  from  probate  court,  questions  of 
fact  are  submitted  to  a  jury,  whose  answers  are  recited  in  the  judgment  as 
"duly  considered,"  being  the  only  findings  claimed  to  have  been  made,  the 
judgment  will  be  regarded  as  based  upon  such   findings.     Engle  v.   York, 

S.  D ,  64  N.  W.  132;  and  in  such  case  the  question  for  review  in 

this  court  is,  could  the  judgment  of  the  circuit  court  properly  follow  such 
findings. 

Notice  of  Appeal — From  Justice.  Under  sec.  89  Justice's  Code  (sec. 
6129  Comp.  Laws)  the  notice  of  appeal  must  state  whether  the  appeal  is  tali- 
en  on  questions  of  law  or  fact,  or  both.  Purcell  v.  Booth,  6  Dak.  17,  50  N. 
W.  196.  Appeal  To  County  Court— New  Trial — New  Judgment— Re- 
mand. Upon  an  appeal  from  justice  to  county  court  upon  questions  of  law 
only,  the  appellate  court  may  "set  aside,  affirm  or  modify"  the  judgment  ap- 
pealed from,  or  it  may  order  a  new  trial  in  justice's  court,  but  cannot  in  such 
case  upon  the  statement  provided  by  statute,  set  aside  the  judgmentoap- 
pealed  from,  and  render  new  judgment  on  the  merits  against  the  opposite 

party.    Coughran  v.   Wilson, S.  D ,  63  N.   W.  774;  Comp,  Laws, 

6136;  Gunsolus  v.  Lormer,  54  Wis.  630, 12  N.  W.  62;  and  if  in  such  case  this 
court  finds  prejudicial  error,  it  should  reverse  the  judgment  and  remand 
the  case  to  the  justice's  court  for  new  trial;  Id.  Griffin  v.  Marquardt,  17  N. 
Y.  28;  Schroeder  v.  Versicherungs  Gesellschaft,  60  Cal.  467.  New  Trial  in 
County  CoTirt,  On  Appeal— Judgment — Execution.  Where  the  action  was 
commenced  in  justice  court  and  plaintiff  recovered,  and  defendantjappealed. 


ERROR  IN  LAW.  157 


and  the  action  was  tried  anew  in  county  court,  the  judgment  there  is  that  of 
the  countj'  court,  and  "may  be  enforced  in   the  same  manner  as  judgments 

in  actions  commenced  therein."    Winton  v.  Knott,  sheriff,   S.  D , 

63  N.  W.  783;  Comp  Laws  6136;  chap.  78,  laws  1890;  Ryan  v.  Parr  (Sup,), 
16  N.  Y.  Supp.  829;  Parker  v.  Spear,  62  How.  Pr.  394;  and  in  such  case 
execution  may  issue  against  the  person  of  the  judgment  debtor.     Id. 

13.  Foreclosures. 

Advertisement  Foreclosure — Filing  Certificate — Attorney's  Affida- 
vit. In  an  action  of  foreclosure  by  advertisement,  held,  that  the  failure  of 
the  officer  to  file  a  duplicate  certificate  of  sale  within  ten  days  after  sale,  un- 
der sec.  5420  Comp.  Laws,  does  not  invalidate  the  sale.  Held,  further,  that 
the  failure  of  mortgagee's  attorney  to  file  the  affidavit  required  by  sec.  5429 
Comp.  Laws,  does  not  invalidate  the  sale,  but  prevents  mortgagee  from  re- 
covering such  fee.  Johnson  v.  Day  et  al,  2  N.  D.  295,  50  .N.  W.  701;  Mill- 
ard V.  Truax,  47  Mich.  251,  10  N.  W.  358;  Kennedy  v.  Brown,  50  Mich.  336, 
15  N.  W.  498;  Jackson  v.  Young,  5  Cow.  (N.  Y.)  269;  Barnes  v.  Kerlinger,  7 
Minn.  82  (Gil.  55);  Robbins  v.  Rice,  7  Gray  202;  Suth.  Stat.  Const,  sec.  446 
et  seq.;  San  Francisco  v.  Pixley,  21  Cal.  59;  Cunningham  v.  Cassidy,  17  N. 
Y.  276;  Osman  v.  Traphagen.  23  Mich.  85;  Bunker  v.  Rand,  19  Wis.  258. 
Cloud  on  Title — Void  Record.  In  an  action  to  set  aside  proceedings  in 
foreclosure  by  advertisement  as  a  cloud  on  plaintiff's  title,  held.,  that  such 
suit  is  not  maintainable  where  proceedings  are  void  on  the  face  of  the  record 
as  not  showing  legal  title  in  the  party  foreclosing.  Morris  v.  McKnight  et 
al,  1  N.  D.  266,  47  N.  W.  375;  Hayes  v.  Frey  (Wis.),  11  N.  W.  695;  Miller  v, 
Clark  (Mich.),  23  N.  W.  35;  Lee  v.  Clary,  38  Mich.  223;  Hoi  combe  v.  Rich- 
ards (Minn.),  35  N.  W.  714;  Benson  v.  Markoe  (Minn.),  42  N.  W.  787. 

Insurance — Divestiture  of  Title — Void  Foreclosure.  In  an  action  on 
an  insurance  policy,  defendant  having  proved  a  divestiture,  before  loss,  of 
plaintiff's  interest  in  the  property  by  virtue  of  foreclosure  proceedings,  reg- 
ular on  their  face,  followed  bj'  a  deed  conveying  defendant's  interest,  held, 
error  to  receive  in  evidence  against  defendant  a  judgment  annulling  such 
foreclosure.  In  an  action  commenced  subsequently  to  the  loss  (defendant 
herein  not  being  a  party  and  having  no  notice  thereof),  to  establish  the  fact 
that  the  foreclosure  proceedings  were  void.  Tierney  et  al  v.  Phenix  Ins.  Co. 
of  Brooklyn,  4  N.  D.  565,  62  N.  W.  642;  2  Black,  Judgm.  sec.  600;  Barr  v. 
Gratz's  Heirs,  4  Wheat.  213;  Freem.  Judgm.  sec.  416.  Rents  and  Profits 
Waiver.  Failure  of  the  trial  court  to  allow  the  mortgagor  rents  and  profits 
of  the  mortgaged  property,  in  an  action  to  foreclose  a  chattel  mortgage,  can- 
not be  assigned  as  error,  where  the  trial  court  was  not  asked  or  given  oppor- 
tunity to  make  such  allowance.  Geo.  W.  Van  Dusen  &  Co.  v.  Arnold  et  al, 
5  S.  D.  588,  .59  N.  W.  961. 

14.  Contracts. 

(a).  Partnership-Conclusionsof  Law  Sustained.  In  an  action  involving 
a  partnership,  conclusions  of  law  upon  trial  to  the  court,  that  certain  property 


15g  Code  of  civil  procedure. 


was  vested  in  the  partnership,  that  the  partnership  contract  is  plain  and  un- 
ambiguous, and  parol  to  exphiin  it  must  be  disregarded,  and  that  a  convey- 
ance in  question  vested  title  to  certain  property  in  the  corporation,  that  the 
assignment  complied  with  the  partnership  contract,  and  that  the  corpora- 
tion thereby  became  the  equitable  thereof,  and  that  plaintiff  was  estopped 
from  claiming  it  as  against  the  corporation,  were  held,  to  be  proper  under 
the  facts.  Hennessy  v.  Griggs  et  al,  1  N.  D.  52,  44  N.  W.  1010;  Lindley 
Partn.  408;  Crawford  v.  Edwards,  33  Mich.  354.  Parol— Partnership  Con- 
tract, Not  Sale  of  Land.  Parol  evidence  is  permissible  to  establish  the 
contract  in  question,  and  that  same  was  a  partnership  agreement  and  not 

one  for  sale  of  land.     Davenport  v.  Buchanan  et  al, S.  D ,61  N.  W. 

47;  Bates  v,  Babcock,  95  Cal.  479,  30  Pac.  605;  Penny  backer  v.  Leary  (la.); 
21  N.  W.  575;  Flower  v.  Barnecoff,  20  Ore.  132,  25  Pac.  370;  Treat  v.  Hiles, 
68  Wis.  344,  32  N.  W.  517;  Richards  v.  Grinnel,  (i3  la.  44, 18  N.  W.  688;  New- 
ell V.  Cochran,  41  Minn.  374,  43  N.  W.  84;  Holmes  v.  McCray,  51  Ind.  358; 
King  V.  Barnes,  109  N.  Y.  267,  16  N.  E.  332;  Wallace  v.  Carpenter,  85  N.  Y. 
590. 

Parol  to  Identify  Property — Sale  of  Land.      In  a  contract  for  sale  of 
land,   if  the  description  of  the  property  therein  is  defective,  it  is  competent 

to  identifj'  and  locate  the  same  by  parol  evidence.     Farrell  v.  Edwards, 

S.  D ,  66  N.  W.  812;  Ames  v.  Lowry,  30  Minn.  283,  15  N.  W.   247;  Tice 

V.  Freeman.  30  Minn.  389,  15  N.  W.  674;  Hurley  v.  Brown,  98  Mass.  545; 
Todd  V.  Taft,  7  Allen  371;  Stout  v.  Weaver,  (Wis.),  39  N.  W.  375;  Easton  v. 
Thatcher  (Utah),  25  Pac.  728. 

Partner  Liable  for  False  Representations  of  Partner.  Every  partner 
is  liable  for  fraudulent  representations  of  every  other  partner  made  in  the 
sale  of  partnership  property  as  a  means  of  effecting  such  sale.     Brundage  v. 

Mellon,    ....  N.   D ,  63  N.  W.  409;  1  Bates  Partn.  sec.  472;  Chester  v. 

Dickerson,  54  N.  Y.  1;  Mechem  Ag.  sec.  743;  Wolfe  v.  Pugh,"  101  Ind.  293; 
Story  Partn.  sec.  108;  Strang  v.  Bradner,  114  U.  S.  555,  5  Sup.  Ct.  1038; 
Locke  V.  Stearns,  1  Mete.  560;  Haney  Mf'g  Co.  v.  Perkins,  78  Mich.  1,  43  N. 
W.  1073;  Stanhope  v.  Swafford,  80  la.  45,  45  N.  W.  403;  Comp.  Laws  3997. 
Invoice  as  Contract  Price.  In  an  action  to  recover  balance  of  purchase 
price  for  lumber,  held,  proper  for  defendant  to  show  that  he  never  accepted 
the  invoice  in  question  as  the  contract  of  the  parties.  Edwards  &  McCul- 
loch  Lum.  Co.  v.  Baker,  2  N.  D.  289,  50  N.  W.  718.  Boundary  Line— Un- 
authorized Contract.  Where  the  controlling  question  is  one  of  fact,  as,  the 
true  location  of  a  boundary  line,  it  is  not  material  that  a  re-survey,  locating 
the  line  as  claimed  by  one  of  the  parties,  was  made  under  an  unauthorized 

contract.     Hanson   v.  Township  of  Red  Rock  (on  rehearing), S.  D , 

63  N.  W.  156.  Gambling  Commissions — Counterclaim  for  Margins.  In  an 
action  for  commissions  and  advances  made  on  a  board  of  trade  sale  of  wheat, 
held,  that  defendant  could  not  recover  upon  counterclaim  for  moneys  paid 


ERROR   IN   LAW.  159 


plaintiffs  as  margins.  Dows  et  al  v.  Glaspel,  4  N.  D.  251,  60  N.  W.  60;  Craw- 
ford V.  Spencer,  92  Mo.  498,  4  S.  W.  713;  Irwin  v.  Willilar,  110  U.  S.  499,  4 
Sup.  Ct.  160;  Phelps  v.  Holderness  (Ark.),  19  S.  W.  921;  Enibrey  v.  Jemi- 
son,  131  U.  S.  336,  9  Sup.  Ct.  776;  McCormick  v.  Nicliols,  19  111.  App.  334; 
Beverage  v.  Hewitt,  8  111.  App.  467;  Miles  v.  Andrews,  40  111.  App.  155;Coff- 
man  v.  Young,  20  111.  App.  82;  Mohr  v.  Miesen  (Minn.),  49  N.  W.  862;  Cobb 
V.  Prell,  1.5  Fed.  774;  Watte  v.  Wickersham  (NebJ,  43  N.  W.  259;  Sprague  v. 
Warren  (Neb.),  41  N.  W.  1133;  Sondheim  v.  Gilbert,  117  Ind.  71,  18  N.  E. 
687;  Shaw  v.  Clark,  49  Mich.  384,  13  N.  W.  786;  Bank  v.  Harrison,  10  Fed. 
243;  Higgins  v.  McCrea,  116  U.  S.  671,  6  Sup.  Ct.  557;  White  v.  Barber,  123 
U.   S.  392,   8  Sup.  Ct.  221;  Kahn  v.  Walton  (Ohio  Sup.),  20  N.  E.  210. 

Rescission — Inability  to  Restore  Status  Quo.  Where  the  right  to 
I'escind  a  contract  is  based  upon  the  wrongful  act  of  oneof  its  parties,  by  rea- 
son of  which  the  consideration  has  failed  in  whole  or  in  part,  inability  to  re- 
store such  party  to  his  former  condition,  when  occasioned  solely  by  such 
wrongful  act,  is  not  alone  sufficient  to  defeat  an  action  to  rescind  such  con- 
tract and  recover  the  consideration  paid  thereunder.  Hilton  v.  Advance 
Thresher  Co.,  .  .S.  D.  . .,  66  N.W.  816.  Rescission— Offer  Too  liate— Court's 
Holding.  Where  the  trial  court  was  neither  called  upon  to  decide,  as  mat- 
ter of  law,  that  an  offer  to  rescind  was  made  too  late,  nor  to  submit  the  ques- 
tion to  a  jury,  a  holding  that  such  offer  was  made  with  sufficient  promptness 
will  not  be  disturbed,  in  absence  of  an  available  exception  thereto.  Hilton 
v.  Advance  Thresher  Co.,  . . . .  S.  D ,  66  N.  W.  816. 

Statute  of  Limitations — Rescission  of  Contract.  An  action  to 
rescind  a  contract  may  be  brought  at  any  time  within  the  statutory  limit- 
ation, by  one  who  offered  to  rescind  in  the  manner  provided  by  statute,  and 
with  reasonable  promptness  after  discovery  of  facts  entitling  him  to  a 
rescission.    Hilton  v.  Advance  Thresher  Co., S.  D.    .....  66  N.  W.  816. 

(b).     Agency. 

Agent — Scope  of  Authority.  Testimony  of  a  bank  cashier,  that  the 
failure  to  collect  the  note  and  mortgage  in  question  was  the  fault  and  ne- 
glect of  the  bank,  is  inadmissible,  not  being  the  statement  of  a  fact  in  the 
line  of  his  duty  as  cashier  nor  within  the  scope  of  his  authority  as  such  bank 
officer;  and  this  court  cannot  say  that  such  evidence  did  not  unjustly  pre- 
judice plaintiff's  case.  Plymouth  Co.  Bank  v.  Oilman,  3  S.  D.  170,  52  N.  W. 
869.  Agent's  Authority  Presumed.  Where  an  agreement  or  lease  was 
made  by  appellant's  local  agent,  and  the  circumstances  show  the  agent's  au- 
thority to  make  it,  and  appellant,  presumed  to  have  knowledge  thereof, 
makes  no  attempt  to  disprove  his  authority,  the  trial  court  may  treat  his 
authority  as  proven.  Origsby  v.  Western  U.  Tel.  Co.  5  S.  D.  561,  59  N.  W. 
734;  Oates  V.  Ry.  Co.,  2  S.  D.  422,  57  N.  W.  202.  Ownership— Bailee's 
Statement.  Declarations  of  a  mere  bailee  of  property,  as  to  its  ownership, 
are  not  admissable  against  bailor.     Parliman  v.  Young  et  al,  2  Dak.  175,  4 


160  CODE  OF  CIVIL  PROCEDURE 


N.  W.  139;  Shannon  C.  J.  dissenting.  Usage— Custom— Cashier's  Au- 
thority. Usages  and  customs  must  yield  to  legislative  expressions,  and  the 
decisions  of  the  courts;  so  lield,  upon  the  question  of  the  cashier's  authority 
to  bind  a  partnership  upon  a  draft  payable  to  the  order  of  the  cashier  who 

signed  it.     Noyes  et  al  v.  Crandall  et  al,    ....   S.  D ,   61  N.   W.   806. 

liOan  Agent— Retaining  Lawyer  Through  Sub- Agent.  A  non-resident 
agent  authorized  by  his  pVincipal  and  charged  with  the  exclusive  manage- 
ment of  a  real-estate  loan  business  in  this  state,  including  examination  of 
titles  and  foreclosure  of  mortgages,  has  implied  authority  to  direct  a  local 
sub-agent,  through  whom  all  the  business  has  been  transacted,  to  retain  a 
lawyer,  whenever  the  interests  of  his  principal  demand  professional  atten- 
tion.    Davis  et  al  v.  Mathews, S.  D ,66  N.  W.  456;  sec.  4003  Comp. 

Laws;  Mechem  Ag.  395;  Ins.  Co.  v.  Grunert,  112  111.  68;  Bodine  v,  Ins.  Co., 
51  N.  Y.  117;  Bank  v,  Martin,  45  Am.  Dec.  87;  Briggs  v.  Town  of  Georgia, 
10  Vt.  68;  Clark  v.  Randall,  9  Wis.  138.  Agency— Mortgage  in  Settlenient. 
An  action  in  claim  and  delivery  lies  to  recover  possession  of  horses  covered 
by  a  chattel  mortgage  taken  in  settlement  of  a  note,  the  agent  making  the 
settlement  having  only  authority  to  merely  collect  the  note;  the   suit  being 

between  principal  and  agent.     Hormann  v.  Sherin, S.  D 60  N.  W. 

145;  Meechem  Ag.  375;  Williams  v.  Johnson,  92  N.  C.  532;  Williams  v.  Por- 
ter, 41  Wis.  422.  Ambiguous  Instructions^Estoppel  of  Principal.  When 
one  gives  his  agent  ambiguous  instructions,  which  the  latter  executes  in 
good  faith,  according  to  a  reasonable  interpretation  of  them,  the  principal 
is  estopped  to  say  that  he  intended  them  to  be  construed  otherwise.  Ander- 
son v.  First  Nat.  Bank,  of  Grand  Forks,  4  N.  D.  182,  59  N.  W.  1029;  Mechem 
Ag.  sees.  314-15,  484;  Nat.  Bank  of  Commerce  v.  Merchant's  Nat.  Bank,  91 
U.  S.  92;  Shelton  v.  Transportation  Co.,  59  N.  Y.  258;  Barney  v.  Newcomb, 
9  Cush.  46;  Noonan  v.  Bradley,  9.  Wall.  394;  Comp.  Laws  sec.  3656;  Saund- 
ers v.  Clark,  29  Cal.  300;  Comp.  Laws  sec.  3564;  People  v.  Utica  Ins.  Co.,  15 
Johns,  380.  Agent — Contract  in  His  Name.  Where  an  agent  contracts  on 
behalf  of  his  principal  he  must  do  so  in  the  principal's  name;  if  he  contracts 
in  his  own  name  he  alone  is  bound.  Nat.  Ger.  Am.  Bank  v.  Langc,  2  N.  D. 
66,  49  N.  W.  414;  Comp.  Laws  sec,  3984;  Mechem  Ag.  sec,  432-438;  Sencer- 
box  V.  McGrade,  6  Minn,  484  (Gil.  334);  Heffner  v.  Brownell,  (la.),  31  N.  W. 
947;  39  Id.  640;  Deering  v.  Thom,  29  Minn.  120,  12  N.  W.  350;  Mayhew  v. 
Prince,  11  Mass,  54;  Spencer  v.  Field,  10  Wend.  87.  Agent  Personally 
Bound,  When.  When  a  party  purporting  to  act  as  agent  makes  agree- 
ments on  behalf  of  his  principal,  if  he  was  in  fact  acting  in  his  own  interest, 
or  in  a  matter  in  which  he  and  his  alleged  principal  were  jointly  interested, 
he  will  be  personally  bound.  Moore  v.  Booker  et  al,  4  N,  D,  543,  62  N.  W, 
607.  Guaranty— Agency  Contract— Exhausting  Collateral.  An  agent 
defaulted  largely  in  complying  with  his  agency  contract,  and  turned  over 
tiO  ^is  employers  notes  and  ?iccounts  collateral  to  bis  indebtedness  under  the 


ERROR  IN   LAW.  161 


contract.  Held,  that  his, employers  were  not  obliged  to  exhaust  the  collat- 
eral before  proceeding  against  the  guarantors  of  the  agency  contract,  nor 
were  the  guarantoi's  entitled  to  be  credited  with  the  value  of  such  collater- 
al.    William  Deering  &  Co.  v.  Russell,  . . . .  N.  D ,  65  N.  W.  691. 

(c).     Sales. 

Warranty— Useless  Machine.  In  an  action  for  breach  of  warranty  on 
sale  of  a  harvester,  held,  reversible  error  to  allow  defendant's  counsel  to  ask 
witness  to  testify  to  the  value  of  the  machine,  on  the  theory  that  it  was  use- 
less, the  evidence  showing  it  could  be  and  was  used  though  it  failed  to  bind 
all  the  sheaves.  C.  Altman  &  Co.  v.  Ginn,  1  N.  D.  402,  48  N.  W.  336.  Con- 
ditional Sale  Order— Non-Delivery  of.  Parol  testimony  is  admissible  to 
show  that  a  written  order  for  school  apparatus  was  signed  by  members  of 
the  school  board  and  delivered  to  soliciting  agents  upon  express  conditions 
i\oi  complied  with,  for  the  purpose  of  showing  it  was  not  delivered  and  had 

no  binding  effect.     Manufacturer's  Furnishing  Co.  v.  Kramer  et  al, S.  D. 

, . . .,  64  N.  W.  528;  Machine  Co.  v.  Faulkner,  . . . .  S.  D 64  N.   W.    163. 

Breach  of  Warranty — Notice  of.  A  warranty  upon  sale  of  an  engine  re- 
quired written  notice  by  letter  from  vendee  as  to  wherein  it  failed  to  satisfy 
the   warranty.     Held,  that  verbal  notice  to  the  local  agent  was  insufflcient. 

Aultman  &  Taylor  Co.  V.  Gunderson  et  al,    ....   S.   D 60  N.   W.  859; 

Cornell  v.  Ins.  Co.,  18  Wis.  387;  and  it  is  not  error  in  such  case  to  refuse  evi- 
dence of  the  local  agent  of  his  subsequent  notification  to  the  vendor  "by  let- 
ter or  otherwise,"  without  showing  how,  or  that  such  notice  ever  reached  the 
principal,  Aultman  &  Taylor  Co.  v.  Gunderson  et  al,  supra.  Warranty — 
Vendee's  Credit  to  Bebut.  In  an  action  for  damages  for  breach  of  frar- 
ranty  in  sale  of  wheat,  held,  that  the  poor  credit  of  vendee  cannot  be  shown 
to  rebut  evidence  of  warranty  where  the  sale  was  made  on  credit,  but  at  a 
price  above  market  value,  and  security  taken  for  purchase  price.  Halley  v. 
Folsom,  1  N.  D.  325,  48  N.  W.  219.  Sale  Order— Oral  Arrangement.  In 
an  action  for  price  of  a  straw  stacker,  held,  that  defendants,  while  said  writ- 
ten order  was  in  force,  could  not  enter  into  an  oral  arrangement  the  terms 
of  which  were  inconsistent  with  the  writing.  Reeves  &  Co.  v.  Corrigan  et 
al,  3  N.  D.  415,  57  N.  W.  80.  Millinery  Goods— Ag^-eed  Price.  Where  an 
employee  in  charge  of  a  millinery  store  had  a  small  stock  of  millinery  goods 
which  she  proposed  to  sell  to  her  employer  at  a  fixed  price,  the  evidence 
tending  to  prove  he  consented  to  take  them  as  they  might  be  needed  in  the 
store  —the  employe  to  keep  an  account  of  the  same — and  they  were  from  time 
to  time  taken  to  the  store  with  employer's  knowledge,  and  sold  in  the  usual 
course  of  business  and  proceeds  received  by  him,  held,  in  absence  of  any 
proof  of  fraud  or  concealment  by  the  employee,  she  was  entitled  to  recover 

the  agreed  price.     Stewart  v.  Gilruth S.  D ,  65  N.  W.  1065;  Me- 

chem  Ag.  sec.  455.     Sale— Fraudulent  Statement  to  Stranger.     It    is  not 
11— TP 


162  CODE  OP  CIVIL  PROCEDURE. 


ordinarily  error  to  refuse  to  admit  evidence  of  uncommunieated  fraudulent 
representations  made  to  a  stranger,  and  not  brought  to  the  knowledge  of  the 
party  seeking  to  rescind  a  sale  of  personal  property,  and  regain  possession 
thereof,  upon  the  sole  ground  that  defendants  rendered  to  plaintiffs  a  state- 
ment of  their  financial  condition,  in  which  the  val,ue  of  property  was  over- 
estimated, and  upon  which  plaintiffs  relied.      Tootle  et  al  v.  Petrie,  sheriff, 

S.    D ,65N.  W.  43.     Symbolical  Delivery.     In   an  action  by  the 

alleged  owner  against  a  sheriff  for  possession  of  personal  property,  held,  un- 
der the  facts  stated,  that  there  was  a  sufficient  delivery  and  symbolical 
change  of  possession  to  meet  requirements  of  sec.  4637  Comp.  Laws.  Morri- 
son V.  Oium,  shei-iff,  3  N.  D.  76,  54  N.  W.  288;  Packard  v.  Dunsmore,  11 
Cush.  282;  Russell  v.  O'Brien,  127  Mass.  349;  Viniug  v,  Gilbreth,  39  Me.  496; 
McKee  v.  Garcelon,  60  Me.  165;  Benford  v.  Schell,  55  Pa.  St.  393. 

(d).     Negotiable  Instruments. 

Negotiable  Note — Attorney  Fee— Statute.  Sec.  1,  chap.  16,  laws 
1889,  containing  a  provision  relative  to  payment  of  an  attorney  fee  in  case 
of  default  or  proceedings  upon  a  note,  bond  or  mortgage,  and  that  such  pro- 
vision in  the  contract  is  against  public  policy  and  void,  yet  a  stipulation  for 
attorney's  fee  in  an  otherwise  negotiable  note  does  not  destroy  its  negotiabil- 
ity; and  the  note  in  suit  is  held  negotiable,  whether  regarded  as  an  Iowa  or 

a  South  Dakota  contract.     Chandler   v.    Kennedy, S.  D ,65  N.  W. 

439.  Corporation  Pledge  of  Notes— Re-pledge  By  Officer — Indorsement — 
Damages.  A  cori^oration  indebted  to  its  officer  for  funds  advanced,  turned 
over  to  him  notes  payable  to  itself,  the  resolution  under  which  this  was 
done  not  authorizing  the  indorsement  of  the  notes  nor  their  negotiation  by 
the  officer;  he  re-pledged  them  to  plaintiff  to  secure  a  loan  to  himself,  with  an 
unlimited  endorsement  by  him  in  the  corporate  name.  Plaintiff  took  with 
notice  of  the  facts.  Held\  (1)  That  the  resolution  did  not  authorize,  nor 
had  the  officer  implied  authority  to  indorse  the  paper  for  his  individual  use. 
(2)  The  loan  transaction  was  prima  facie  illegal  upon  its  face.  Plaintiff 
had  the  burden  of  showing  the  officer  had  authority  to  indorse  and 
transfer  the  paper;  no  such  evidence  being  offered.  (3)  If  the  defense  Of 
fraud  and  failure  of  consideration  were  made  out,  plaintiff,  as  sub-pledgee, 
with  knowledge  that  the  officer  held  it  simply  as  a  pledge,  could  only  recov- 
er the  amount  due  from  the  corporation  to  the  officer.     Security  Bank  of 

Minnesota  v.  Kingsland  et  al, N.  D ,  65  N.  W.  697;  Wilson  v.  R'y. 

Co.  120  N.  Y.  145,  24  N.  E.  384;  Meads  v.  Bank,  25  N.  Y.  143;  Shaw  v.  Spen- 
cer, 100  Mass.  382;  Roberts  v.  Hall,  37  Conn.  205;  Clarke  v.  Wallace,  1  N. 
D.  404,  48  N.  W.  339;  Colebrooke,  Collat.  Sec.  180,  181.  Purchase 
Price — Warranty— Negotiable  Note.  In  a  suit  by  vendor  against  vendee 
for  value  of  a  binder,  held^  that  the  defendant  is  liable  therefor  though  he 
has  rescinded  the  contract  of  sale  fcr  breach  of  warranty,  and  though  he 
gave  a  negotiable  note  to  plaintiff  for  purchase  price,   w^ich  note  is  in  the 


teRROR   tN   LAW*  163 


I 


hands  of  a  bona  fide  endorsee  before  maturity  and  unpaid;  (Fahey  v.  Har- 
vesting Co.,  3  N.  D.  220,  55  N.  W.  580  followed.)  Canham  v.  Piano  Mfg. 
Co.,  3  N.  D.  229,  55  N.  W.  583.  Guaranty  of  Paper— Partner.  In  an  ac- 
tion on  a  guaranty  made  by  a  member  of  a  partnership  on  its  behalf,  of  com- 
mercial paper  for  accommodation  of  third  parties,  held,  that  the  firm  was 
not  bound  by  such  guaranty,  under  the  evidence,  and  that  the  judgment  be- 
low must  be  reversed  and  a  new  trial  granted.  Clark  v.  Wallace  et  al,'  1  N* 
D.  404,  48  N.  W.  339;  Sweetser  v.  French,  2  Cush.  309;  Schermerhorn  v. 
Scherraerhorn,  1  Wend.  119;  Bank  v.  Bowen,  7  Wend.  158;  Foote  v.  Sabin,  19 
John.  154;  Bank  v.  McDonald,  127  Mass.  82;  Moynahan  v.Hannaford,  42  Mich. 
329,  3  N.  W.  944;  Lindley  on  Part.  341  (bottom  paging);  Moore  v.  Stevens, 
60  Miss.  809;  Macklin  v.  Kerr,  28  U.  C.  C.  P.  90.  Note  in  Settlement- 
Want  of  Consideration.  In  an  action  upon  a  promissory  note  given  in  set- 
tlemefit  of  a  controversy,  the  defense  of  want  of  consideration  may  be  inter- 
posed where  one  party  to  the  controversy  in  fact  had  no  claim  and  knew  it. 
McGlynn  v.  Scott,  4  N.  D.  18,  58  N.  W.  460;  Anthony  v.  Boyd,  (R.  I.),  8  Atl. 
701;  De  Mars  v.  Mfg.  Co.  (Minn.),  35  N.  W.  1;  Smith  v.  Farra  (Ore.),  28 
Pac.  241,  1  Pars.  Cont.  pp.  438-9;  Wahl  v.  Barnum,  116  N.  Y.  87,  22  N.  E. 
280;  Pitkin  v.  Noyes,  48  N.  H.  294;  Miles  v.  Estate  Co.,  32  Ch.  Div.  266; 
Spahr  V.  Hollingshead,  8  Blackf.  (Ind.),  415;  Creutz  v.  Heil  (Ky.),  12  S.  W. 
926;  Bellows  v.  Sowles,  55  Vt.  39;  Everingham  v.  Meighan,  55  Wis.  354,  13 
N.  W.  269;  Turner  v.  Peaco<tk,  13  N.  C.  303;  2  Pom.  Eq.  Jur,  9850;  Gran- 
din  v.  Grandin,  (N.  J.  Supp.),  9  Atl.  656.  Guaranty  of  Collection.  In  an 
action  on  promissory  notes,  held,  that  under  a  guaranty  of  "the  collection  of 
the  within  note"  the  guarantors  undertook  only  that  the  makers  were  solv- 
ent when  the  guaranty  was  entered  into,  and  that  the  notes  were  collectible 
by  usual  legal  proceedings  if  taken  with  reasonable  diligence.  Roberts, 
Throp  &  Co.  V.  Laughlin  et  al,  4  N.  D.  167,  59  N.  W.  967;  sec  4280  Comp. 
Laws.  Deposit — Liability  on  Check.  A  bank  receiving  a  deposit  and 
placing  same  to  general  credit  of  depositor,  is  liable  upon  implied  contract 
to  pay  checks  drawn  thereon,  and  it  is  general  policy  of  law  to  permit  the 
bank,  in  an  action  by  a  depositor  for  the  money,  to  claim  to  be  owner  there- 
of. Martin  v.  Minnekahta  State  Bank,  . . . .  S.  D ,  64  N.  W.  127;  Mc- 
Laughlin V.  Bank,  6  Dak.  406,  43  N.  W.  715;  Farmer  v.  Rogers,  10  Cal. 
355;  Bank  v.  Mason,  95  Pa.  St.  113;  Bank  v.  Alexander,  (Pa  Sup.),  14  Atl. 
402;  Bank  v.  Burkhardt,  100  U.  S.  689. 

(e).     Corporations. 

Discharge  of  Mortgage— Securities  in  Exchange — Bank  Ofllcers. 
A  bank  officer  conveyed  to  the  bank,  in  his  individual  capacity,  for  full  value, 
realty  incumbered  by  mortgage  executed  by  him.  IZeM,  such  bank  is  not 
liable  to  the  mortgagee  for  loss  sustained  by  him  because  of  worthless  secur- 
ities received  by  him  in  exchange  for  a  discharge  of  the  mortgage,  where 
such   securities  were  the  individual  property  of  such  bank  officers,  and  such 


164  CODE  OP  CIVIL  PROCEDURE. 

discharge  was  obtained  by  such  officers  in  their  individual  capacities  and  not 
as  officers  of  the  bank.     Staples  v.  Huron  Nat.  Bank  (Lostuttor,  Intervenor), 

S.  D.     ...,66N.  W.  314.     Bank's  Liability  to  Mortgagee.     Neither 

will  the  fact  that  the  bank  officers  at  the  time  of  such  sale  received  from  the 
bank  full  cash  value  of  such  property,  render  the  bank  liable  for  such  loss 
by  the  mortgag'ee;  the  bank  taking  the  property  with  full  covenants  of  war- 
ranty*, and  having  the  agreement  of  the  two  parties  interested  in  the  prop- 
erty at  the  time  of  the  sale  that  they  would  save  the  bank  harmless  against 
such  mortgage.  Id.  Release  of  Chattel  Mortgage — Agency.  In  absence 
of  evidence  to  contrary,  the  authority  of  a  managing  agent  of  a  non-resident 
corporation  to  execute,  in  name  of  his  principal,  a  release  and  discharge  of 
a  chattel  mortgage,  will  be  presumed.  Hilton  v.  Advance  Thresher  Co., 
S.  D ,  66  N.  W.  816.  Conditional  Deed  for  Creditors— Mort- 
gage Deficiency— Adjudication.  Where  a  debtor  conveyed  mort|-agcd 
premises  to  a  trustee  for  a  creditor  bank,  the  deed  containing  a  condition,  of 
which  the  grantee  had  no  notice,  that  he  should  pay  the  mortgage,  and  the 
grantee  deeded  to  the  bank  who  took  possession  of  the  property  and  collect- 
ed the  rents,  held,  that  as  between  the  trustee  and  the  bank,  the  latter  was 
equitably  liable  for  deficiency  of  the  mortgage  debt;  and  a  court  of  equity 
having  all  parties  before  it,  can  determine  the  rights  and  liabilities  as  be- 
tween the  defendants.    Connor  v.  Nat,  Bank  of  Dak.  et  al,  ....  S.  D , 

64  N.  W.  519;  Pom.  Eq.  Jur.  sec.  181. 

Municipal  Bonds — Estoppel — Conditions  Precedent.  Municipal  cor- 
porations are  estopped  as  against  bona  fide  holders  of  municipal  bonds,  from 
setting  up  the  defense  that  the  preliminary  steps  necessary  to  authorize  the 
issue  of  bonds  were  not  taken,  when  officers  who  have  charge  of  their  issue 
are  especially  or  impliedly  authorized  to  determine  whether  conditions  prec- 
edent to  issue  of  valid  bonds  are  complied  with,  and  recite  in  the  bonds  that 
they  have  been  complied  with,  by  declaring  that  they  are  issued  pursuant  to 
a  certain  specified  statute.  Coler  et  al  v.  Dwight  School  Tp.  of  Richland 
Co.,  3  N.  D.  249,  55  N.  W.  587;  Inhabitants  of  Morrison,  133  U.  S.  523,  10 
Sup.  Ct.  333;  Oregon  v.  Jennings,  119  U.  S.  74,  7  Sup.  Ct.  124;  County  of 
Moultrie  v.  Rockingham,  &c.,  Bank,  92  U.  S.  631;  Venice  v.  Murdock,  id. 
494;  Town  of  Colona  V.  Eaves,  id.  484;  Dixon  Co.  v.  Field,  111  U.  S.  83,  4 
Sup.  Ct.  315;  Humboldt  Tp.  v.  Long,  92  U.  S.  642;  Com'rs  of  Knox  Co.  v. 
Aspinwall,  21  How.  539;  Fulton  v.  Town  of  Riverton  (Minn.),  44  N.  W.  257; 
15  Am.  &  Eng.  Ency.  of  Law,  1295  et  seq.;  Burr  Pub.  Secur.  299.  School 
Bonds— "Want  of  Consideration— Error.  Under  the  decision  of  the  court  on 
the  former  appeal  In  this  case  (58  N.  W.  499,  4  N.  D.  30),  it  was  held  that  the 
defendant  could  show  a  want  of  consideration  for  the  bonds  sued  on  by  proving 
that  defendant  received  neither  cash  nor  audited  and  canceled  warrants  as 
consideration  for  them.  For  error  in  refusing  to  allow  such  proof  the  judg- 
ment is  reversed.     Flagg  v.  School  Dist.  No.  70,  Barnes  County, N.  D. 


ERROR   IN   LAW.  165 


... .,  65  N.  W.  674.  School  Bonds — De  Facto  Corporation.  In  an  action 
upon  interest  coupons  of  school  district  bonds,  held,  that  the  defendant,  be- 
ing a  de  facto  municipal  corporation,  cannot  defend  on  the  ground  that  the 
district  had  no  legal  existence  and  that  the  bonds  were  void.  Coler  et  al  v. 
Dwight  School  Tp.,  3  N.  D.  249,  55  N.  W.  587,  and  many  Michigan,  Kansas, 
Illinois,  Wis.,  Nev.,  Minn.,  Fla.,  Mo.  and  Fed.  cases  there  cited;  2  Dill. 
Mun.  Cor.  sec.  894.  Sureties — Township  Treasurer  Neg'Otiating  Bonds. 
In  an  action  upon  the  official  bond  of  a  school  township  treasurer,  held,  un- 
der the  facts  stated,  that  the  sureties  thereon  were  not  liable  for  proceeds  of 
township  bonds  negotiated.  Prairie  School  Township  v.  Haseleu  et  al,  3N. 
D.  328,  55  N.  W.  938;  U.  S.  v.  Boyd,  15  Pet.  187;  Bank  v.  Ziegler,  49  Mich. 
157,  13  N.  W.  496;  Taylor  v.  Parker,  43  Wis.  78;  State  v.  Conover,  78  Am. 
Dec.  54;  Gerber  v.  Ackley,  37  Wis.  43;  Murfree,  Oflf.  Bonds,  sees  461-2;  Me- 
chem  Pub.  Oflf.  sees.  282-3.  Agency  Sales — Guaranty — Notice — Oflfsetting 
Commissions.  In  an  action  upon  an  agency  guaranty  contract,  held,  that 
while  the  agent,  R.,  agreed  by  parol  with  the  general  agent  that  his  com- 
missions for  handling  an  article  should  be  used  to  reduce  his  prior  indebted- 
ness to  the  employer  corporation,  the  corporation  was  under  no  duty  to  im- 
part this  agreement  to  the  guarantors,  and  their  ignorance  of  it  furnished 
no  defense  to  an  action  on  a  contract  of  guaranty.  William  Deering  &  Co. 
V.  Russell,  N.  D ,  65  N.  W.  691.  Corporate  Assets- 
Speculation  by  Director.  A  director  of  a  corporation  cannot  be  permitted 
to  speculate  in  the  assets  or  indebtedness  of  his  corporation  for  his  own  per- 
sonal  profit,  at  the  expense  of  the  corporation.      Loftus  et  al  v.  Farmers' 

Shipping  Ass'n  et  al, S.  D  . . .,  65  N.    W.    1076;  Thomp.  Cor.   sec.  4061, 

4071  et  seq.;  Mor.  Priv.  Corp.  sec.  517;  Gardner  v.  Butler,  30  N.  J.  Eq.  702; 
Butts  V.  Wood,  37  N.  Y.  317;  Paine  v.  R.  R.  Co.,  31  Ind.  283;  Hoyle  v.  R.  R. 
Co.,  54  N.  Y.  314;  Jones  v.  Morrison,  31  Minn.  148,  16  N.  W.  854;  R.  R.  Co. 
V.  Poor,  59  Me.  277;  Torrey  v.  Bank,  9  Paige  649;  Gillett  v.  Gillett,  9  Wis. 
194;  Iron  Co.  v.  Sherman,  30  Barb.  553;  Perry  Trusts,  sec.  207. 

15    Negligence. 

See    "Instructions,"    "Evidence,"  supra;   "Damages,"    infra;    and  see 
"Negligence,"  page  21. 

(a).  Cattle  at  Large — Owner's  Care — Defendant's  Recklessness. 
While  within  certain  limitations,  the  owners  of  cattle  have  a  license  to  al- 
low them  to  run  at  large,  yet  if  they  are  in  places  extra  hazardous,  the  own- 
ers are  required  to  exercise  extra  care  in  taking  care  of  them,  and  if  an  ac- 
cident occurs  preventable  by  the  use  of  such  care  as  the  circumstances  re- 
quired of  the  owners,  they  cannot  recover  unless  the  loss  was  occasioned 
by  wanton  or  reckless  misconduct  of  defendant  or  its  employees.  Williams 
V.  No.  Pac.  R.  R.  Co.,  3  Dak.  168,  14  N.  W.  97.  Although  plaintiff  has 
negligently  exposed  himself  or  his  property  to  an  injury,  yet  if  defendant, 
after  discovering  the  exposed  situation,  inflicts  the  injury  through  a  failure 


166  CODE  OF  CIVIL  PROCEDURE. 

to  exercise  ordinary  care,  plaintiff  may  recover  damages.  Id.  Trespassing: 
Animal — Due  Care.  In  an  action  for  negligence  for  killing  a  colt,  Iwld,  un- 
der the  facts  staled,  that  the  animal  was  not  trespassing,  and  that  defend- 
ant was  bound  to  use  due  care  in  approaching  the  private  crossing  in  ques- 
tion. Bishop  V.  Chi.  Mil.  &  St.  P.  Ry.  Co.,  4  N.  D.  636,  62  N.  W.  605;  4 
Am.  &  Eng.  Ency.  Law  pp.  915,  916  and  cases  cited. 

Neg-ligence — Abstract  Proposition.  An  instruction,  in  an  action  for 
negligence  for  killing  a  cow,  to  the  effect  that  if  the  jury  believed  from  the 
evidence  that  after  the  cow  was  seen  by  the  engineer  no  efforts  were  made  to 
slacken  the  train  to  avoid  the  accident,  and  that  it  might  have  been  done 
without  injury  to  train  or  passengers,  by  use  of  ordinary  care  after  the  cow 
was  seen,  and  that  he  was  carelessly  negligent,  by  reason  of  which  the  ac- 
cident occurred,  then  defendant  will  bo  liable,— though  stating  the  law  cor- 
rectly, was  not  applicable  to  the  facts  of  this  case.  Harrison  v.  Chi.  Mil.  & 
St.  P.  Ry.  Co.,  ....  S.  D ,60  N.  W.  405. 

Passenger — Ride  By  Certain  Route — Rule.  In  an  action  for  dam- 
ages arising  from  being  wrongfully  ejected  from  a  train,  Jield,  that  the  trial 
court  improperlj'  instructed  the  jury  that  the  passenger's  right,  by  virtue 
of  her  ticket,  to  transportation  by  a  certain  route,  depended  upon  her 
•  knowledge  of  the  rule  of  the  company.     Church  v.   Chi.    Mil.    &   St.   P.  R. 

Co.,  ....  S.  D ,  60  N.    W.    854;  Deitrich   v.    R,  R.   Co.,  71  Pa.  St.  436; 

Johnson  v.  R.  R.  Corp.  46  N.  H.  221;  R.  R.  Co.^  v.  Randolph,  53  111.  515; 
Plott  v.  Ry.  Co.,  63  Wis.  516,  23  N.  W.  412;  Bennett  v.  R.  R.  Co.,  69  N.  Y. 
594;  Hall  v.  Ry.  Co.,  15  Fed.  65:  Cheney  v.  R.  R.  Co.,  11  Mete.  (Mass.),  121. 
Care  Proportionate  To  Danger — Error.  In  an  action  for  damages  for 
injury  to  property  caused  by  prairie  fire  an  instruction  upon  the  question  of 
negligence,  that  "the  care  must  be  proportionate  to  the  danger,  a  higher 
degree  of  care  is  required  when  the  wind  is  high  than  when  it  is  calm,  and 
where  combustible  matter  is  very  dry  than  when  it  is  wet,"  was  held,  er- 
roneous, under  the  evidence.  Johnson  v.  No.  Pac.  R.  Co.,  1  N.  D.  354,  48 
N.  W.  227;  R.  R.  Co.  v.  Anderson,  20  Mich.  244.  Held,  further,  that  such 
error  is  not  reversible  error,  plaintiff  having  conclusively  established  his 
right  to  recover  on  other  grounds.  Id;  Brobst  v.  Brock,  10  Wall.  519; 
Ross'  Case,  112  U.  S.  395,  5  Sup.  Ct.  184.  Negligence— Responsibility  Re- 
gardless of  Title.  Defendant  is  responsible  for  negligence  committed  by 
it  on  the  right  of  way  in  its  possession  and  use,  regardless  of  title  or  right 
of  possession.     Gram  v.  N.  Pac.  R.  Co.,  1  N.  D.  252,  46  N.  W.  972.. 

(b).  Contributory  Negligence.— Plaintiff's  Freedom  From.  It  is  er- 
ror to  charge  the  jury  that  defendant's  liability  depended  solely  upon  free- 
dom of  plaintiff  from  contributory  negligence,  defendant's  negligence  not 
being  established  by  evidence  as  matter  of  law.  Bennett  v.  No.  Pac.  R.  Co., 
4  N.  D.  348,  61  N.  W.  18.  Contributory  Negligence— Question  For  Jury. 
In  an  action  for  negligence,  whether  plaintiff  should  have  gone  ahead  and 


ERROR   IN   LAW.  167 


set  the  pin,  and  stepped  aside  before  the  engine  and  car  came  together,  is  a 
question  for  the  jury,  and  it  was  not  contributory  negligence  as  matter  of 
law  for  him  to  remain  on  the  foot  board.  Bennett  v.  No.  Pac.  R.  R.  Co.,  3 
N.  D.  91,  54  N.  W.  314.  Ordinary  Care  By  Traveler— Contributory  Negli- 
gence— Burden.  A  traveler  is  not  required  to  forego  travel  on  a  street  be- 
cause he  may  know  of  an  obstruction  thereon,  nor  is  he  required  to  show 
that  in  passing  he  used  extraordinary  care  to  avoid  the  injury  in  question. 
But  he  is  required  to  use  ordinary  care,  in  view  of  all  the  circumstances, 
and  if  an  ordinarily  prudent  person  would  not  undertake  to  pass  the  obstruc- 
tion under  the  circumstances,  it  would  be  contributory  negligence  to  do  so. 
The  burden  of  showing  contributory  negligence  is  upon  defendant,  and  un- 
less such   negligence  conclusively  appears  from  plaintiff's  testimony,  the 

court  cannot  take  the  case  from  the  jury.     Ouverson  v.  City  of  Grafton 

N.  D 65  N.  W.  676;  Gram  v.  R.  R.  Co.,  1    N.    D.   252,  46  N.   W.  972. 

Biding  With  Third  Person— Imputed  Negligence.  When  plaintiff  at 
her  own  request  was  riding  with  a  third  person  who  owned  and  controlled 
the  horse  and  conveyance,  and  whose  judgment  and  capacity  to  drive  she 
had  no  reason  to  doubt, — such  person  being  in  no  manner  under  plaintiff's 
control,  and  not  being  a  parson  for  whom  plaintiff  was  responsible, — the 
negligence  of  such  person,  contributing  to  the  injury,  cannot  be  imputed  to 

plaintiff  to  defeat  a  recovery.     Ouverson  v.  City  of  Grafton, N.  D , 

65  N.  W.  676:  Beach,  Contrib.  Neg.  pp.  108118;  Town  of  Albion  v.  Hetrick, 
46  Am.  Rep.  233;  Robinson  v.  Railroad  Co.,  66  N.  Y 11;  Bennett  v.  Transporta- 
tion Co.,  36  N.  J.  Law,  225;  Little  v.  Hackett,  116  U.  S.  366,  6  Sup.  Ct.  391; 
Transfer  Co.  v.  Kelly,  36  Ohio  St.  86;  Cuddy  v.  Horn,  46  Mich.  596;  10  N. 
W.  32;  Nisbet  v.  Town  of  Garner,  (Iowa)  39  N.  W.  516;  Follman  v.  City  of 
Mankato,  35  Minn.  522,  29  N.  W.  317;  Land  Co.  v.  Mingea  (Ala.),  7  South. 
666;  Town  of  Knightstown  v.  Musgrove,  (Ind.  Sup.)  18  N.  E.  452. 

(c).  Proximate  Cause — One  of  Two  Causes.  When  two  causes  unite 
in  producing  injury, — one  the  negligent  act  or  omission  of  a  municipality, 
the  other  something  for  which  neither  the  municipality  nor  the  party  in- 
jured was  responsible, — and  when  the  injury  could  not  have  resulted  but  for 
the  negligent  act  or  omission  of  the  municipality,  such  act  or  omission  is 

the  proximate  cause  of  the  injury.     Ouverson  v.  City  of  Grafton,    N.  D. 

65  N.  W.  676;  Shear.  &  R.  Neg.  (4th  ed.)  346;  Elliott,  Roads  &  S.  451;  Ring 
V.  City  of  Cohoes,  77  N.  Y.  83;  Lowery  v.  R.  R.  Co.  99  N.  Y.  158,  1  N.  E. 
608;  Lake  v.  Milliken,  62  Me.  240;  Ricker  v.  Freeman,  50  N.  H.  420;  Forney 
V.  Gelmacher,  75  Mo.  113;  Binford  v.  Johnston,  82  Ind.  426;  Pastine  v. 
Adams,  49  Cal.  87;  sec.  4600,  Comp.  Laws.  Frightened  Horse— Natxiral  Re- 
svilt.  And  when  a  horse  of  ordinary  gentleness  becomes  frightened  at  an 
object  negligently  and  wrongfully  permitted  to  stand  in  the  public  street, 
and  becomes  unmanageable,  resulting  in  an  accident,  no  contributory  negli- 
gence being  imputed  to  the  injured  party,  the  city  is  liable,  provided  the  in- 


168  CODE  OF  CIVIL  PROCEDURE. 

jury  be  one  reasonably  anticipaled  as  a  natural  result  of  such  negligent  and 
wrongful  act  or  omission;  and  sec.  4600,  Comp.  Laws  makes  a  defendant  li- 
able when  the  injury  is  proximate,  though  not  reasonably  anticipated.  Ouv- 
erson  v.  City  of  Grafton,  supra. 

Section  Foreman — Res  Geste.  A  statement  of  a  section  foreman  made 
the  day  after  the  tire  in  question  occurred,  and  while  the  foreman  is  on  or  at 
the  railroad  track  at  or  near  which  the  fire  is  claimed  to  have  started,  that: 
"Certain  it  was  started  right  here.  Now  I  shall  catch  hell,  because  of  the 
fire  getting  away," — is  incomi>etent,  and  should  have  been  stricken  out  on  de- 
fendant's motion;  the  statements,  representations,  or  admissions  of  an  agent, 
to  be  admissible  in  evidence  to  bind  his  principal,  must  have  been  made  at  the 
time  of  doing  the  act  he  is  authorized  to  do,  and  must  have  been  concerning 
the  act  he  was  doing,  either  while  actually  engaged  in  the  transaction  or  so 
soon  thereiifter  as  to  be  in  reality  a  part  of  it,  and  constitute  a  part  of  the 
res  gestae.  Wendt  v.  Chi.,  Mil.,  S.  P.  &  O.  Ry.  Co.,  4  S.  D.  476,  57  N.  W. 
226;  La  Rue  v.  Elevator  Co.,  3  S.  D.  637,  54  N.  W.  806;  Bank  v.  Oilman,  3 
S.  D.  170,  52  N.  W.  869;  (on  rehearing  4  S.  D.  265,  56  N.  W.  892).  Another 
Steam  Engine — Incompetent.  Evidence  that  a  certain  steam  engine  (not 
the  one  in  question)  an  hour  before  a  horse  became  frightened  at  a  steam  en- 
gine, resulting  in  an  accident,  and  a  few  minutes  thereafter,  held,  incompe- 
tent to  establish  the  fact  that  such  engine  was  in  operation  when  the  acci- 
dent occurred,  it  being  shown  that  such  engine  was  operated  very  irregu- 
larly.    Ouverson    v.    City    of    Grafton,    N.  D ,    65    N.    W.    676. 

Defendant's  Orders  to  Servant.  In  an  action  for  damages  caused  by  fire 
alleged  to  have  set  by  defendant's  servants. or  agents,  held,  proper  to  prove 
defendant's  orders  to  his  hired  man  not  to  set  any  fires.  Moe  v.  Job,  1  N. 
D.  140,  45  N.  W.  700. 

(d).  Fellow-Servant — Gang  Foreman.  In  an  action  against  a  railway 
company  for  negligence  of  the  gang  foreman  in  failing  to  block  a  pile  which 
was  shoved  against  the  plaintiff,  working  under  him,  held,  that  the  trial 
court  erred  in  instructing  the  jury  that  the  defendant  company  was  liable 
for  such  negligence  to  a  fellow-servant  of  the  foreman,  under  sec.  3753  Comp. 
Laws,  or  otherwise.  Ell  v.  No.  Pac.  R.  Co.,  1  N.  D.  336,  48  N.  W.  222;  Hol- 
den  V.  R.  R.  Co.,  129  Mass.  268;  Cooley  on  Torts,  543;  Judge  Dillon,  in  24 
Am.  Law  Rev.  175;  Farwell  case,  4  Mete.  (Mass.),  60;  Steamship  Co.  v.  Mer- 
chant, 133  U.  S.  376,  10  Sup.  Ct.  397;  Ry.  Co.  v.  Welch,  72  Tex.  298,  10  S.W. 
629;  Elliott  v.  R.  R.  Co.,  5  Dak.  523,  41  N.  W.  758;  Fagundes  v.  R.  R.  Co.,  79 
Cal.  97,  21  Pac.  437;  McMasters  v.  R.  R  Co.  (Miss.),  4  So.  59;  Connelly  v.  R.  R. 
Co.  (Minn.),  35  N.  W.  582;  Gormley  v.  R.  R.  Co.,  72Ind.  31;  Keys.  v.  R.  R.  Co. 
(Pa.).  3  Atl.  15;  Whaalan  v.  R.  R.  Co.,  8  Ohio  St.  249;  Valtez  v.  R.  R.  Co.,  85 
111.  500;  Besel  v.  R.  R.  Co.,  70  N.  Y.  171;  Cooper  v.  R.  R.  R.  Co.,  23  Wis.  668; 
Blake  v.  R.  R.  Co.,  70  Me.  60;  and  see  other  Federal,  Cal.,  Mass.,  Wis.,  Ind. 
and  N.  Y.  cases  cited  in  the  principal  (N.  D.)  case.     Fellow-Servant— De- 


i 


ERROR   IN   LAW.  169 


pends  on  Character  of  Work.  Whether  a  negligent  servant  is  the  fellow- 
servant  of  an  employee  injured  by  cai*elessness  of  the  former  depends,  not  up- 
on the  relative  ranks  of  the  two  servants,  but  upon  the  character  of  the  work, 
the  negligence  with  respect  to  which  resulted  in  the  injury.  Ell  v.  No.  Pac. 
R.  Co.,  1  N.  D.  336,  48. N.  W.  222;  Crispen v.  Babbett,  81  N.  Y.  516;  Lindvall 
V.  Woods  (Minn.),  42  N.  W.  1020;  Davis  v.  R  R.  Co.,  55  Vt.  84;  State  v.  Mals- 
ter,  57  Md.  287;  Car  Co.  v.  Parker,  100  Ind.  191;  Hussey  v.  Coger,  112  N.Y.  614, 
20  N.  E.  556;  Copper  v.  R.  R.  Co.  (Ind.),  2  N.  E.  749;  Yates  v.  Iron  Co.  (Md.), 
16  Atl.  280;  Elevator  Co.  v.  Neal,  65  Md.  438,  5  Atl.  338;  McGovern  v.  M'fgCo. 
(Ga.),  5  S.  E.  492;  Lewis  v.  Seifert  (Me.),  11  Atl.  514;  Olson  v.  R.  R.  Co.  (Minn.), 
35  N.  W.  866;  Anderson  v.  Winston,  31  Fed.  528;  Webb  v.  R.  R.  Co.  (N.  C),  2 
S.  E.  440.  Negligence  of  Fellow-Servant — What  Is.  The  negligent  per- 
formance or  omission  to  perform  a  duty  the  master  owes  his  employees  is  at 
common  law  the  negligence  of  the  master,  whatever  the  grade  of  the  ser- 
vant who  is  careless.  The  negligence  of  a  servant  engaged  in  the  same  gen- 
eral business  with  the  injured  servant  is  negligence  of  a  fellow-servant, 
whatever  position  the  former  occupies  with  respect  to  the  latter,  as  to  all 
acts  pertaining  to  duties  of  a  mere  servant,  as  contradistinguished  from  the 
duty  of  the  master  to  his  employees.  Ell  v.  No.  Pac.  R.  Co.,  1  N.  D.  336,  48 
N.  W.  222. 

16.     Damages — Measure  of, 

See  "Negligence,"  "Evidence,"  supra. 

(a).  Contract  Is  Measure  of.  In  an  action  for  breach  of  contract  the 
contract  furnishes  the  measure  of  damages,  and  the  amount  recovered  can- 
not, except  in  cases  under  section  4617  Comp.  Laws,  exceed  the  amount  the 
party  could  have  gained  by  full  performance  on  both  sides.  Cranmer  v. 
Kohn  et  al, S.  D 64  N.  W.  125.  Percentage  on  Sales— Monthly- 
Sales,  Not  Salary.  Where,  on  trial  of  an  action  for  damages  for  services 
performed  by  a  traveling  salesman,  the  contract  is  shown  to  be  one  for  pay- 
ment of  a  percentage  upon  sales,  the  measure  of  damages  is  the  amount  plain- 
tiff could  have  made  on  the  sales  had  he  not  been  prevented  by  defendant 
from  completing  his  contract;  and  it  is  error  to  allow  plaintiff  to  testify  as  to 

the  value  of  his  monthly  services  generally.     Cranmer  v.  Kohn  et  al, S. 

D ,  64  N.  W.  125;  Mueller  v.  Spring  Co.  (Mich.),  50  N.  W-  319;  Loud  v. 

Campbell,  26  Mich.  239;  Leonard  v.  Beaudry,  68  Mich.  312,  36  N.  W.  88. 
Stipulation  in  Contract— Measvire  of  Damages — Land  Sale.  A  stipula- 
tion that  grantor  may  retain  all  payments  made  or  secured,  in  case  gi-antee 
fails  to  perform  a  contract  for  sale  of  land,  containing  covenants  and  condi- 
tions, the  number  and  nature  of  which  made  it  impracticable  to  fix  the  actual 
damage  in  case  of  breach  thereof,  is  not  void  under  sec.  3581,  Comp.  Laws; 
so  held,  in  an  action  for  money  had  and  received  under  such    contract. 

Barnes  v.  Clement, S.  D ,  66  N.  W.  810.     Agency— Statute  of 

lU—T  P 


170  CODE  OF  CIVIL  PROCEDURE. 

Frauds— Land  Sale.  The  power  of  an  agent  to  execute  a  binding  contract 
for  sale  of  lands  may  be  established  by  letters  and  telegrams  received   from 

his  principal.     Farroll  v.  Edwards,  ....  S.  D ,  66  N.   W.  812.     Delay 

in  Prosecuting—Market  Value.  A  delay  of  eleven  months  in  bringing  ac- 
tion, held,  fatal  to  plaintiff's  claim  that  he  had  prosecuted  with  reasonable 
diligence,  under  subdi.  2,  sec.  4603  Comp.  Laws,  giving  highest  market 
value  between  date  of  conversion  and  verdict.     Pickert  v.  Rugg  et  al,  1  N. 

D,  230,  46  N.  W.  446;  1  Suth.  Dam.  237,  238  and  cases  in  note;  Wright  v. 
Bank,  110  N.  Y.  237,  18  N.  E.  79;  Gallagher  v.  Jones,  129  U.  S.  193,  9  Sup. 
Ct.  335;  Baker  v.  Drake,  53  N.  Y.  211;  Gruman  v.  Smith,  81  N.  Y.  25;  Brew- 
ster V.  Van  Liew,  119  111.  661,  8  N.  E.  842;  Ball  v.  Campbell,  30  Kan.  180,  2 
Pac.  165;  Page  v.  Fowler,  39  Cal.  412.  Commissions — Value  of  Paper.  In 
an  action  for  commissions  on  sales  of  farm  machinery,  payments  to  be  made 
in  paper  or  money  as  the  sale  may  be  made,  the  measure  of  recovery  is  only 
the  actual  value  of  paper  selected  under  the  contract.  Brown  v.  McCull  et 
al, S.  p.  ...  ,  60  N.  W.  151.  Nominal  Damages— Reversal  to  Re- 
cover. When  essential  to  the  determination  and  preservation  of  an  import- 
ant legal  right,  a  judgment  will  be  reversed  to  enable  a  party   to  recover 

merely  nominal  damages.     Olson  v.  Huntimer  et  al  (on  rehearing), S. 

D ,66N.  W.  313;  2  Ency.  PI.  &  Prac.  p.   535;  sec.  4601  Comp.  Laws. 

Costs — Counterclaim.  The  defendant  recovers  costs  in  the  District  Court 
as  matter  of  course,  unless  plaintiff  is  entitled  to  costs;  so  held,  where  a 
counterclaim  was  set  up.  Dows  et  al  v.  Glaspel,  4  N.  D.  251,  60  N.  W.  60; 
Ury  V.  Wilde,  (Super.  N.  Y.),  3  N.  Y.  Supp.  791.  Judgment— Treasurer 
and  Sureties — Penalty.  If  the  county  recover  judgment  in  an  action 
brought  by  a  state's  attorney  in  its  name  against  the  county  treasurer  and 
sureties,  the  judgment  may  include  the  twenty  per  cent,  penalty  specified  in 
sec.  617  Comp.  Laws,  as  against  sureties  as  well  as  principal.  Jerauld  Co.  v. 
Williams  et  al,  . . .  .S.  D 63  N.  W.  905;  Tappan  v.  People,  67  111.  339. 

(b).  Deceit— Representations — Actual  Worth.  In  an  action  for  dam- 
ages for  deceit  in  sale  of  property,  the  measure  of  damages  is  the  difference 
between  what  the  property  would  have  been  worth  if  as  represented  and 
what  it  was  actually  worth  at  the  time.  Fargo  Gas  &  Coke  Co.  v.  Fargo 
Gas  &  E.  Co.,  4  N.  D.  219,  59  N.  W.  1066;  Comp.  Laws  sec.  4593;  Moore  v. 
Hutchins,  102  Mass.  440;  Page  v.  Wells,  37  Mich.  415;  Williams  v.  McFad- 
den,  23  Fla.  143,  1  So.  618;  Nyeswander  v.  Lowman,  124  Ind.  584,  24  N.  E. 
355;  Noyes  v.  Blodgett,  58  N.  H.  502;  Stiles  v.  White,  11  Mete.  (Mass.)  356; 
Lunn  V.  Schermer,  93  N.  C.  164;  Vail  v.  Reynolds,  118  N.  Y.  297,  23  N.  E. 
301;  Doran  v.  Eaton,  (Minn.),  41  N.W.  244;  Woolman  v.  Wirtsbaugh  (Neb.), 
35  N.  W.  216;  Drew  v.  Beall,  62  111.  167;  Home  v.  Walton  (111.   Sup.),   7  N. 

E.  100;  Jackson  v.  Armstrong  (Mich.),  14  N.  W.  702;  Matlock  v.  Reppy, 
(Ark.),  14  S.  W.  546;  Woodward  v.  Thatcher,  21  Vt.  580;  3  Suth.  Dam.  pp. 
389,  390,  392     Deceit— Means  of  Discovering  Truth.     In  an  action  for  un- 


ERROR   IN   LAW.  171 


paid  purchase  price  of  a  gas  and  electric  light  plant,  where  a  counterclaim 
was  set  up  for  damages  for  deceit,  held,  under  the  facts  stated,  that  it  was 
error  to  charge  the  jury  that,  if  means  were  at  defendant's  hands  to  discover 
the  truth  or  untruth  of  plaintiff's  statements,  he  must  be  presumed  to  have 
had  knowledge  of  the  facts,  which  would  require  investigation  by  defend- 
ant. Fargo  Gas  &  Coke  Co.  v.  Fargo  Gas  &  E.  Co.,  4  N.  D.  219,  69  N.  W. 
1066;  Mead  v.  Bunn,  32  N.  Y.  280;  Redding  v.  Wright  (Minn.),  51  N.  W. 
1056;  Gardner  v.  Trenary,  65  la.  646,  22  N.  W.  912;  Schumaker  v.  Mather, 
133  N.  Y.  590,  30  N.  E.  755;  Caldwell  v.  Henry,  76  Mo.  254;  Oswald  v.  McGe- 
hee,  28  Miss.  S40;  Cottrill  v.  Kraum,  100  Mo.  397,  13  S.  W,  753;  Campbell  v. 
Frankern,  65  Ind.  591.  Kerr,  Fraud  &  M.  77,  80,  81;  Alfred  Shrimpton  & 
Sons  v.  Philbrik  (Minn.),  55  N.  W.  551;  Brandt  v.  Frederick  (Wis.),  47  N. 
W.  6;  Big.  Fraud  522-528.  Excessive  Alimony — Gross  Sum.  The  court 
may  in  its  discretion,  in  granting  the  wife  a  divorce,  make  suitable  allow- 
ance to  be  paid  her  by  the  husband  in  a  gross  sum  instead  of  monthly  or  an- 
nual payments.  Williams  v.  Williams, S.  D ,  61  N.  W.  38;  Robin- 
son V.  Robinson,  79  Cal.  511,  21  Pac.  1095;  Burrows  v.  Purple,  107  Mass.  432; 
sec.  2584  Comp.  Laws;  held,  also,  that  $30,000,  in  addition  to  $3,000  tempo- 
rary alimony  and  counsel  fees,  is,  under  the  facts  stated,  an  excess- 
ive allowance  for  support  and  maintenance.  Williams  v.  Williams,  supra. 
Personal  Injury — Mental  Powers.  In  an  action  for  personal  injuries,  no 
claim  being  made  that  plaintiff's  mental  powers  were  impaired  by  the  injury, 
it  is  error  to  instruct  the  jury  that  in  estimating  damages  they  may  consider 
the  effect  of  the  injury  upon  plaintiff's  mental  powers.  Comaskey  v.  No.  Pac, 
R.  Co.,  3  N.  D.  276,  55  N.  W.  732.  Complaint —Penalty— Statute.  A  com- 
plaint for  recovery  of  statutory  penalty  should  contain  a  reference  to  the 
statute  and  a  specification  of  acts  or  omissions  of  defendant  in  violation 
thereof;  and  if  it  is  faulty  in  these  respects,  the  evidence  being  confined  to 
actual  damages,  an  instruction  that  if  the  jury  find  for  plaintiff  the  statutory 
penalty  must  be  added  to  amount  of  actual  damages,  is  erroneous.     Kirby  v. 

Western   Union  Tel.    Co.,   ....  S.  D ,  60  N.  W.  152;  Kirby  v.  Tel.  Co., 

4  S.  D.  105,  57  N.  W.  202;  People  v.  Brooks,  4  Denio  469;  Briscoe  v.  Hin- 
man,  Deady,  588,  Fed.  Cas.  No.  1887;  Fish  v.  Manning,  31  Fed,  340  and  cases 
cited. 

(c).  Ejectment — Conveyance  Pending  Litig'ation.  In  an  action  of 
ejectment  and  to  recover  damages  for  withholding  the  property,  held,  plain- 
tiff is  entitled  to  recover  damages  though  he  has  conveyed  the  land  pending 
the  litigation.  Dunstan  v.  No.  Pac.  R.  Co.,  2  N,  D.  46,  49  N,  W.  426;  sec, 
5454  Comp.  Laws.  Interest  on  Value  of  Land,  In  an  action  to  recover 
land,  held,  that  the  court  properly  instructed  the  jury  that  they  might,  or 
might  not,  at  their  option,  allow  interest  on  the  annual  value  of  the  use  of 
the  land,  Heger  et  al  v,  De  Groat,  3  N,  D.  354,  66  N.  W.  160, 
Attorney's  Fees — Ejectment,     In  an  action   to  recover   possession  of  land 


172  CODE  OF  CIVIL  PROCEDURE. 

and  for  damages  for  its  wrongful  occupation,  Jield,  error  to  admit  testimony 
as  to  attorney's  foes  claimed  as  damages.  Heger  et  al  v.  De  Groat,  3  N.  D. 
354,  66  N.  W.  150;  White  v.  Clack,  2  Swan  230  (Tenn.);  Baron  v.  Abell,  3 
John.  481;  Aslin  v.  Parkin,  2  Burrows  665;  Delatouche  v.  Chubb,  1  N.  J. 
Law  466;  Hunt  v.  O'Neil,  44  Id.  566;  Sedg.  &  W.  Tr.  Title  Land,  sec,  679; 
sec.  4601  Com  p.  Laws. 

(d).  Claim  and  Delivery — Value  of  Use.  The  giving  of  delivery 
bond  by  defendant  in  an  action  of  claim  and  delivery  does  not  render  the  pro- 
ceeding analogous  to  an  action  for  conversion;  and  if  plaintiff  recover  an 
alternative  judgment  he  is  not  limited  in  damages  for  detention,  to  interest 
on  value,  but  may  recover  value  of  use  of  property  wrongfully  detained, 
where  it  has  an  active  capacity  for  earning  money.  Northrup  v.  Cross,  sher- 
iff, 2  N.  D.  433,  51  N.  W.  718.  Value  of  Property— Third  Party.  In  an 
action  in  claim  and  delivery  the  plaintiff  in  such  action  is  liable  for  the  value 
of  the  property  taken  by  the  officer,   to  a  third  party  who  was  the  actual 

owner  thereof  when  taken.    Feury  v.  McCormick  H.  M.  Co., S.  D , 

61  N.  W.  162;  Cooley  Torts  (2d  Ed.),  pp.  148,  129;  Corner  v.  Mackintosh,  48 
Md.  374;  Peterson  v.  Foil,  67  la.  402,  25  N.  W.  677;  Shaw  v.  Rowland,  32 
Kan.  154,  4  Pac.  146.  Claim^  and  Delivery — Cost  of  Regaining'  Property. 
Where  property  wrongfully  taken  is  sold  at  judicial  sale  and  is  purchased 
by  the  owner  and  delivered  to  him,  he  is  not  entitled,  in  an  action  in  claim 
and  delivery  against  the  officer  who  took  it,  to  judgment  for  its  value,  but 
only  for  the  sum  that  it  cost  him  to  regain  possession,  with  interest.  North- 
rup V.  Cross,  sheriff,  (on  rehearing)  2  N.  D.  433,  51  N.  W.  718;  Ford  v.  Will- 
iams, 24  N.  Y.  359;  Baker  v.  Freeman,  9  Wend.  36;  Mclnroy  v.  Dyer,  47  Pa. 
St.  118;  Sprague  v.  Brown,  40  Wis.  612;  Leonard  v.  McGinnis,  34  Minn.  506, 
26  N.  W.  733. 

17.     Statutes. 

Trespassing  Livestock — Constitutionality  of  Special  Law.  In  an 
action  involving  special  laws  applicable  to  Black  Hills  counties,  relative  to 
trespassing  livestock,  held,  that  such  law  is  not  unconstitutional  as  being  a 
special  law;  and  that  the  common  law,  not  being  in  accordance  with  the 
common  usage  and  necessities  of  Black  Hills,  does  not  apply  to  that  country. 
Sprague  v.  Fre.  E.  &  M.  V.  Ry.  Co.,  6  Dak.  86,  50  N.  W.  617.  Mechanic's 
Lien — Hauling  Materials.  One  who  under  a  contract  with  the  owner  or 
contractor,  hauls  material  for  a  building,  erection,  or  other  improvements, 
and  which  is  used  in  the  erection  of  the  same,  is  entitled  to  a  lien  therefor 
under  the  mechanic's  lien  laws  of  this  state.  Kehoe  v.  Hansen  et  al,  .... 
S.  D.— 65  N.  W.  1075;  Hill  v.  Newman,  38  Pa.  St.  152;  Pinkerton  v.  LeBeau, 
3  S.  D.  440,  54  N.  W.  97;  Dixon  v.  LaFarge,  1  E.  D.  Smith  (N.  Y.)  722;  Ec- 
cleston  V.  Hetting,  (Mont.),  42  Pac.  105.  Eminent  Domain — Jury  Trial — 
Appeal— Constitutionality.  Sec.  1302  Comp.  Laws,  relating  to  damages 
from  laying  out  highways,   etc.,  and  section  1324  Comp.  Laws,  giving  right 


ERROR   IN   LAW,  173 


of  appeal  and  jury  trial,  are  not  in  conflict  with  sec.  13,  art,  6,  State  Consti- 
tution, prohibiting  taking  of  private  property  without  just  compensation, 
etc.  Town  of  Dell  Rapids  v,  Irving, S.  D ,  64  N.  W.  149;  the  pro- 
visions of  the  constitution  are  satisfied  by  giving  appeal  to  a  court  in  which 
a  jury  trial  may  be  had.  Id.  The  term  "municipal  corporation,"  in  chap. 
94,  laws  1891,  does  not  include  townships.     Town  of  Dell  Rapids,  v.  Irving, 

. . . .  S.  D ,  64  N.  W.  149;  Dill  Mun.  Cor.  sec.  20;  15  Am.   &  Eng.  Ency, 

Law,  954-5;  Hamilton  Co.  v.  Mighels,  7  Ohio  St.  109;  Riddle  v.  Proprietor, 
etc.,  7  Mass.  169;  School  Dist.  v.  Wood,  13  Mass.  193;  Beach  v.  Lehhey,  11 
Kan.  23;  Mower  v.  Inhabitants  of  Leicester,  9  Mass.  247;  Eastman  v.  Merid- 

ith,  36  N.  H.  284;  Bailey  v.  Lawrence  Co.,    . . . .  S.  D ,   59  N.    W.   219; 

Heller  v.  Stremmel,  52  Mo.  309;  State  v.  Leffingwell,  54  Mo.  458;  Const, 
Art.  9,  10;  Id,  Art.  13,  sec.  1;  Art.  5,  sec.  23;  sec.  773,  1022-1188  Comp. 
Laws;  Norton  v.  Peck,  3  Wis,  714:  Eaton  v,  Manitowoc  Co,,  44  Wis.  489; 
Chap,  112,  sec,  1,  laws  1887;  Van  Antwerp  v.  Dell  Rapids  Tp,  3  S.  D.  305,  53 
N.  W.  82,  (on  rehearing)  5  S.  D.  447,  59  N.  W.  209.  Chattel  Mortgage— Not 
Filed— Creditor.  By  the  provisionsof  sec.  4379Comp.  Lawsachattel  mortgage 
executed  and  delivered,  but  not  properly  deposited  in  the  office  of  the  reg- 
ister of  deeds  is  void,  as  against  creditors  of  the  mortgagor  who  became 
such  while  such  mortgage  was  withheld  from  the  record;  following  Kim- 
ball Co.  V.  Kirby,  4S.  D.  152,  55  N.  W.  1110,  and  Jewett  v.  Sundback,  5  S. 

D.  Ill,  58  N.  W.  21.     Noyes  et  al  v.  Brace  et  al,    S  D ,  65  N. 

W.  1071;  Crippen  v.  Fletcher,  56  Mich.  386,  23  N.  W.  56;  Haynesv.  Leppig, 
40  Mich.  607,  and  other  Michigan  cases  there  cited;  Vreeland  v,  Pratt 
(Sup.),  17  N.  Y.  Supp.  307;  Karst  v.  Gane  (Sup.),  16  N.  Y.  Supp.  385.  As- 
signment of  Exempt  Property — Attachment.  Under  the  statute  regulat- 
ing assignments  for  benefit  of  creditors,  and  under  sec.  2023  Civil  Code,  an 
assignment  of  all  the  debtor's  property,  reserving  therefrom  all  property 
"exempt  from  execution"  is  valid,  in  the  absence  of  actual  fraud,  and  not 
subject  to  attack  under  the  attachment  laws.  Red  River  Val.  Nat.  Bank  of 
Fargo,  V.  Freeman,  1  N.  D.  196,  46  N.  W,  36;  Severson  v.  Porter,  (Wis. ), 
40  N.  W.  577;  Bank  v.  Hinman  (Wis.),  21  N.  W.  280;  Lininger  v.  Ray- 
mond, 9  Neb.  40,  2  N.  W.  359;  Brooks  v.  Nichols,  17  Mich.  38;  Garnor  v. 
Frederick,  18  Ind.  507;  Story's  Eq.  Jur.  Sec,  367;  Heckman  v.  Messinger, 
49  Pa.  St.  465;  Mulford  v.  Shirk,  26  Pa.  St.  473;  Dow  v.  Platner,  16  N.  Y. 
562;  Simpson  v.  Robert,  35  Ga.  180;  Bank  v.  Cox,  6  Me.  395.  "Municipal" 
Corporations— Quasi  Corporations,  Ch.  94,  Laws  1891,  was  designed  to 
affect  "municipal"  and  "other  corporations"  referred  to  in  section  18,  Art. 
17  of  Constitution  only,  and  has  no  application  to  quasi  corporations  organ- 
ized under  the  laws  of  this  state  for  political  and  governmental  purposes. 
Town  of  Dell  Rapids  v.  Irving,  ....  S.  D ,  64  N.  W.  149.  Disbar- 
ment— Statutory  Grounds  Only.  Where  the  statute  enumerates  grounds 
for  disbarment  of  an  attorney,   no  other  grounds  can  be  considered  by  the 


174  CODE  OF  CIVIL  PROCEDURE. 


court.  In  re  Eaton  4  N.  D.  514,  62  N.  W.  597;  Sec.  473,  465  Comp  Laws. 
Bepeal  by  Implication — Two  Affirmative  Statutes.  The  doctrine  of  repeal 
by  implication  will  not  be  applied  when  two  aflflrmative  enactments  relat- 
ing to  the  same  subject  are  clearly  susceptible  of  a  construction  that  will  ren- 
der both  operative;  field,  on  this  principle,  that  chap.  24,  Laws  1881,  confer- 
ring power  upon  school  districts  to  issue  bonds,  was  not  repealed  by  any  pro- 
visions of  laws  of  1883.     Color  et  al  v.  Rhoda  School  Tp S.  D ,  63  N, 

W.  158. 

APPLICATION  FOR  NEW  TRIAL— ON  WHAT  PAPERS.  §  5089, 
Comp.  Laws;  §  5473  Rev.  Codes,  N.  D.  When  the  applica- 
tion is  made  for  a  cause  mentioned  in  the  first,  second,  third 
and  fourth  subdivisions  of  the  preceding  section,  it  must  be 
made  upon  aflBdavits;  for  any  other  cause  it  may  be  made,  at 
the  option  of  the  moving  party,  either  upon  a  bill  of  excep- 
tions or  a  statement  of  th'e  case,  or  upon  the  minutes  of  the 
court.  On  such  hearing  reference  may  be  had  in  all  cases  to 
the  pleadings  and  orders  of  the  court  on  file;  and  where  the 
motion  is  made  on  the  minutes,  reference  may  also  be  had  to 
any  depositions,  documentary  evidence  and  stenographic  re- 
port of  the  testimony  or  other  papers  used  upon  the  trial. 
(Sec.  2,  chap.  21  Laws  1887,  Dak.) 

[Sec.  5473  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  word  ''affi- 
davit" is  used  instead  of  "affidavits,"  and  the  words  "bill  of  exceptions  or 
a"  are  omitted.     (Am'd.  Rev.  Com'rs.) 

Sec.  287  C.  C.  P.;  Levisee  p.  85;  Harst  Pr.  Deer.  Code  §  658. 

Consult  subdivisions  1  to  4,  of  preceding  section,  and  the  various  sub- 
divisions of  the  next  section. 

What  Papers  or  Evidences  Not  Part  of  Record.  Neither  the  rulings 
of  the  court  in  admitting  or  excluding  evidence,  instructions  to  jury,  the 
judge's  minutes  or  stenographer's  notes,  depositions  nor  affidavits  used  in 
the  court  below,  are  part  of  the  record — unless  made  so  by  a  bill  of  excep- 
tions. St.  Croix  Lumber  Co.  v.  Pennington,  2  Dak.  467,  11  N.  W.  497;  Reed 
V.  Gardiner,  17  Wall.  409;  and  minutes  of  stenographer  taken  at  the  trial, 
form  no  part  of  the  record,  and  are  not  binding  upon  the  judge  in  settling 
bill  of  exceptions.  Golden  Terra  Min.  Co.  v.  Smith  et  al,  2  Dak.  377,  11  N. 
W.  98.  Destruction  of  Papers — No  Ground.  The  destruction  or  loss  of 
testimony  and  proceedings  of  trial,  taken  by  the  stenographer,  does  not  of 
itself  constitute  ground  for  new  trial.  Golden  Terra  Mining  Co.  v.  Smith 
et  al,  2  Dak.  377,  11  N.  W.  98. 

[Author's  Note.  The  following  authorities  are  cited  from  other 
states,  as  bearing  upon  this  section.] 


APPLICATIOK — WHEN    HEARD — WHAT   PAPERS.  175 

When  Must  Be  Made  On  Affidavits.  In  the  specified  cases  the  mo- 
tion cannot  be  made  on  other  papers  than  affidavits.  Hayne,  New  Tr.  & 
App.,  sec.  135;  Beans  v.  Emanuelli,  36  Cal.  118.  But  the  motion  may  be 
made  upon  grounds  which  must  be  supported  by  affidavits,  and  upon  other 
grounds  which  must  be  suppoi'ted  by  a  statement  or  bill  of  exceptions.  Id. 
On  Minutes.  Where  the  motion  is  made  upon  the  minutes  of  the  court  it 
is  to  be  heard  and  decided  without  any  formal  record.  Hayne  on  New  Tr. 
&  App.  Sec.  134. 

Statement— When  Made  up  Before  Decision.  After  the  decision  the 
grounds  which  were  argued  in  support  of  the  motion,  together  with  so 
much  of  the  evidence  or  other  matter  as  may  be  necessary  to  explain  such 
grounds,  maj'  be  incorporated  into  a  statement,  which  constitutes  the  rec- 
ord upon  which  the  order  may  be  reviewed.  But  in  every  other  civil  case 
the  record  upon  the  motion  must  be  made  up  before  the  motion  is  decided. 
Hajnes,  New  Tr.  &  App.  sec.  134.  It  is  otherwise  in  criminal  cases.  Id. 
note  1;  Lin  Tai  v.  Hewell,  56  Cal.  117;  People  v.  Fisher,  51  Cal.  322;  Peo- 
ple v.  Ah.  Fat,  47  Cal.  631.  Decision  Before  Record  Made— Reversal.  If 
the  motion  be  granted  before  the  record  is  made  up  the  order  granting  the 
motion  will  be  reversed.  Hayne  on  New  Tr.  &  App.  sec.  134;  Hill  v.  White, 
2  Cal.  306;  Hart  v.  Burnett,  10  Cal.  64;  Budd  v.  Drais,  50  Cal.  120.  Motion 
— Denial  of  Without  Record— Affirmance.  But  if  the  motion  be  denied 
without  a  record,  the  order  denying  it  will  be  affirmed.  Hayne  on  New  Tr. 
&  App.  sec.  134;  Linn  v.  Twist,  3  Cal.  89;  Doyle  v.  Sewall,  12  Cal.  425; 
Smith  V.  Fagan,  17  Cal.  181;  Fee  v.  Starr,  13  Cal.  170;  Visher  v.  Webster, 
13  Cal.  60;  Mclntyre  v.  Willis,  20  Cal.  177;  Hoadley  v.  Crow,  22  Cal.  265; 
Wilson  V.  Dougherty,  45  Cal .  35.  Appeal  Dismissed,  When.  Where  the 
motion  was  denied  without  a  record  the  appeal  has  been  dismissed.  Hayne 
on  New  Tr.  &  App.  sec.  134  note  3;  Cosgrove  v.  Johnson,  13  Cal.  510;  Weg- 
gemheim  v.  Hook,  35  Cal.  217. 

Newly  Discovered  Evidence — What  Sufficient  Record.  A  motion 
by  plaintiff  for  a  new  trial  for  newly  discovered  evidence,  founded  on  the 
complaint,  a  copy  of  the  phonographer's  minutes  of  the  evidence  on  file, 
and  affidavits  showing  the  character  of  the  newly  discovered  evidence,  held, 
to  be  sufficient  in  form,  under  sec.  2879  Rev.  St.,  which  provides  that  such 
motion  may  be  made  and  heard  without  a  bill  of  exceptions,  upon  affidavits, 
and  the  papers  in  the  action,  and  a  transcribed  copy  of  the  phonographer's 
minutes.     Smith  v.  Smith  et  al,.(Wis.)  8  N.   W.  868. 

NOTICE  OF  INTENTION— MOTION  ON  AFFIDAVITS— ON  BILL- 
ON STATEMENT— ON  MINUTES.  §  5090,  Comp.  Laws;  §  5474. 
Rev.  Codes,  N,  D.  The  party  intending  to  move  for  a  new  trial 
must,  within  twenty  days  after  the  verdict  of  the  jury,  if  the 
action  were  tried  by  jury,  or  after  notice  of  the  decision  of  the 


176  CODE  OF  CIVIL  PROCEDURE. 

court,  if  the  action  were  tried  without  a  jury,  serve  upon  the 
adverse  party  a  notice  of  his  intention,  designating  the  statu- 
tory grounds  upon  which  the  motion  will  be  made  and  whether 
the  same  will  be  made  upon  affidavits,  or  the  minutes  of  the 
court,  or  a  bill  of  exceptions,  or  a  statement  of  the  case. 

Subdivision  1,  If  the  motion  is  to  be  made  upon  affidavits, 
the  moving  party  must,  within  twenty  days  after  serving  the 
notice,  or  such  further  time  as  the  court  in  which  the  action  is 
pending,  or  a  judge  thereof  may  allow,  serve  a  copy  of  such 
affidavits  upon  the  adverse  party,  who  shall  have  ten  days  to 
serve  counter  affidavits,  a  copy  of  which  must  be  served  upon 
the  moving  party.  Motions  for  new  trial  on  the  ground  of 
newly  discovered  evidence  may  be  made  at  any  time  before  the 
close  of  the  term  next  succeeding  that  at  which  the  trial  was 
had. 

Subdivision  2.  If  the  motion  is  to  be  made  upon  a  bill  of 
exceptions,  and  no  bill  haS  already  been  settled  as  hereinbe- 
fore provided,  the  moving  party  shall  have  the  same  time  after 
service  of  the  notice  to  prepare  and  obtain  a  settlement  of  a  bill 
of  exceptions  as  is  provided  after  the  entry  of  judgment,  or 
after  receiving  notice  of  such  entry,  by  section  5083,  and  the 
bill  shall  be  prepared  and  settled  in  a  similar  manner.  If  a  bill 
of  exceptions  has  been  already  settled  and  filed,  when  the  no- 
ticie  of  motion  is  given,  such  bill  shall  be  used  on  the  motion. 
When  the  notice  designates  as  the  grounds  of  the  motion  errors 
in  law  occurring  at  the  trial  and  excepted  to  by  the  moving 
party,  such  bill  of  exceptions  shall  specify  the  particular  errors 
upon  which  the  party  will  rely. 

Subdivision  3.  If  the  motion  is  to  be  made  upon  a  state- 
ment of  the  case,  the  moving  party  must,  within  twenty  days 
after  service  of  the  notice,  or  such  further  time  as  the  court  in 
which  the  action  is  pending,  or  the  judge  thereof,  ma^  allow, 
prepare  a  draft  of  the  statement  and  serve  the  same,  or  a  copy 
thereof,  on  the  adverse  party.  If  such  proposed  statement  be 
not  agreed  to  by  the  adverse  party,  he  must  within  twenty  days 
thereafter  prepare  amendments  thereto  and  serve  the  same,  or 
a  copy  thereof,  upon  the  moving  party.     If  the  amendments  be 


APPLICATION — WHEN  HEARD — PAPERS.         l77 

adopted  the  statement  shall  be  amended  accordingly,  and  then 
presented  to  the  judge  who  tried  or  heard  the  cause,  for  settle- 
ment, or  be  delivered  to  the  clerk  of  the  court  for  the  judge. 
If  not  adopted,  the  proposed  statement  and  amendments  shall 
within  ten  days  thereafter  be  presented  by  the  moving  party  to 
the  judge,  upon  five  days'  notice  to  the  adverse  party,  or  deliv- 
ered to  the  clerk  of  the  court  for  the  judge;  and  thereupon  the 
same  proceedings  for  the  settlement  of  the  statement  shall  be 
taken  by  the  parties,  and  clerk,  and  judge,  as  are  required  for 
the  settlement  of  bills  of  exception  by  section  5083.  If  no 
amendments  are  served  within  the  time  designated,  or,  if  serv- 
ed, are  allowed,  the  proposed  statement  an^  amendments,  if 
any,  may  be  presented  to  the  judge  for  settlement,  without  no- 
tice to  the  adverse  party.  When  the  notice  of  intention  desig- 
nates as  the  ground  of  the  motion  the  insufficiency  of  the  evi- 
dence to  justify  the  verdict  or  other  decision,  the  statement 
shall  specify  the  particulars  in  which  such  evidence  is  alleged 
to  be  insufficient.  When  the  notice  designates  as  the  ground 
of  the  motion  errors  in  law  occurring  at  the  trial  and  excepted 
to  by  the  moving  party,  the  statement  shall  specify  the  partic- 
ular errors  upon  which  the  party  will  rely.  If  no  such  specifi- 
cations be  made,  the  statement  shall  be  disregarded  on  the 
hearing  of  the  motion.  It  is  the  duty  of  the  judge  in  settling 
the  statement,  to  strike  out  of  it  all  redundant  and  useless  mat- 
ter, and  to  make  the  statement  truly  represent  the  case,  not- 
withstanding the  assent  of  the  parties  to  such  redundant  or 
useless  matter,  or  to  any  inaccurate  statement.  When  settled, 
the  statement  shall  be  signed  by  the  judge,  with  his  certificate 
to  the  eifect  that  the  same  is  allowed,  and  shall  then  be  filed 
with  the  clerk. 

Subdivision  4.  When  the  motion  is  to  be  made  upon  the 
minutes  of  the  court,  and  the  ground  of  the  motion  is  the  in- 
sufficiency of  the  evidence  to  justify  the  verdict  or  other  decis- 
ion, the  notice  of  intention  mustspecify  the  particulars  in  which 
the  evidence  is  alleged  to  be  insufficient;  and.  if  the  ground  of 
the  motion  be  errors  in  law  occurring  at  the  trial,  and  excepted 
12— TP 


178  CODE  OF  CIVIL  PROCEDURE. 

to  by  the  moving  party,  the  notice  of  intention  must  specify 
the  particular  errors  upon  which  the  party  will  rely.  If  the 
notice  do  not  contain  the  specifications  here  indicated,  when 
the  motion  is  made  on  the  minutes  of  the  court,  the  motion 
must  be  denied.     (Sec.  6,  chap.  21,  Laws  1887,  Dak). 

[Sec.  5474,  Rev.  Codes,  N.  D.,  is  the  same  in  the  first  part  of  tlie  section 
— preceding  subd.  1 — except  that  the  words  "or  a  bill  of  exceptions"  are 
omitted. 

Subd.  1  is  the  same,  except  that  the  word  "thirty"  is  substituted  for 
"twenty",  and  the  words  "or  a  judge  thereof"  are  omitted. 

Subd.  2  of  the  N.  D.  section  relates  to  settlement  of  statements  (omit- 
ting all  reference  to  bills  of  exception),  is  substantially  a  substitute  for  sub- 
division 8  in  the  Con^).  Laws,  and  is  as  follows: 

''If  the  motion  is  to  be  made  upon  a  statement  of  the  case  and  no  state- 
ment has  already  been  settled  as  hereinbefore  provided  the  moving  party 
shall  have  the  same  time  after  service  of  the  notice  of  intention  to  move  for 
a  new  trial  to  prepare  and  obtain  a  settlement  of  a  statement  of  the  case  as 
is  provided  in  section  5467."    (As  Am'd,  Rev.  Com'rs). 

Subd.  3  of  the  N.  D.  section  is  the  same  as  subd.  4  in  Comp.  Laws,  down 
to  and  including  the  word  "rely".  Then  follows  this  language:  "If  the  no- 
tice does  not  contain  the  specifications  herein  stated  and  the  motion  is  made 
on  the  minutes  of  the  court,  the  motion  must  be  denied.  If  an  appeal  is 
taken  from  the  decision  on  such  motion  the  party  appealing  shall  have  the 
same  time  after  such  decision  in  which  to  prepare  and  have  settled  a  state- 
ment of  the  case  to  be  used  on  appeal  as  is  provided  in  section  5467."  (As 
Am'd,  Rev.  Com'rs.)] 

Sec.  288  C.  C.  P.;  Levisee  p.  86;  Harst.  Pr.,  Deer.  Code,  §  659. 

Consult  sees.  5089,  5092,  5093,  Comp.  Laws;  sees.  5473,  5476,  5477,  Rev. 
Codes,  N.  D.;  also,  the  preceding  chapter  on  ''Exceptions,"  particularly  sees. 
5081,  5082,  5083,  Comp.  Laws,  sees.  5464,  5465,  5467,  Rev.  Codes,  N.  D. 

SUBDIVISION  1.— Notice  of  Intention— Affidavits. 

(a).  Explaining  the  Section.  In  Gaines  v.  White,  sheriff,  2  S.  D. 
410,  47  N.  W.  524,  the  court,  referring  to  this  section,  say:  "The  specifica- 
tions thus  provided  for  are  that  the  moving  party  must  serve  on  the  op- 
posite party  a  notice  of  intention,  designating  the  statutory  grounds  upon 
which  the  motion  will  be  made,  and  whether  the  same  will  be  made  upon 
aflfldavits,  or  the  minutes  of  the  court,  or  a  bill  of  exceptions,  or  a  statement 
of  the  case.  The  defendant  has  not  made  the  specifications  of  particulars 
wherein  the  evidence  is  insufficient  to  support  the  verdict  according  to  the 
requirements  of  the  statute,  either  in  his  notice  of  intention  to  move  for  a 
new  trial,  or  in  the  bill  of  exceptions.  It  will  not,  therefore,  be  considered." 
Notice  of  Intention  Necessary.     The  object  of  this  section  being  to  give 


APPLICATION — WHEN   HEARD — PAPERS.  179 

the  opposite  party  time  to  prepare  for  the  motion,  the  notice  of  intention 
must  be  given  before  the  court  can  entertain  the  motion  for  a  new  trial. 
First  Natn.  Bank  v.  Comfort,  4  Dak.  167,  28  N.  W.  855.  Notice  of  Intention 
Not  Jurisdictional.  Under  existing-  statutes,  giving  notice  of  intention 
to  move  for  new  trial  i§  not  jurisdictional.  Johnson  v.  Northern  Pac.  R. 
Co.,  1  N.  D.  354,  48  N.  W.  227;  Volmer  v.  Stagerman,  25  Minn.  244.  Indis- 
pensable, Unless  Waived.  The  motion  for  new  trial  may  be  made  either 
upon  the  minutes  of  the  court,  upon  affidavits,  upon  a  bill  of  exceptions,  or 
statement  of  the  ease;  but  in  all  these  methods  a  notice  of  intention  to  move 
is  indispensable  to  the  motion,  unless  waived.  Gould  v.  Duluth  &  Dak. 
Elevator  Co.,  2  N.  D.  216,  50  N.  W.  969. 

(b).  SuflB.ciency  of  Evidence — Unassailable,  "When.  Sufficiency  of 
the  evidence  to  support  the  verdict  cannot  be  assailed  here,  when  in  neither 
the  notice  of  intention  nor  the  bill  of  exceptions  are  the  particulars  specified 
wherein  the  evidence  is  alleged  to  be  insufficient.  Pickert  v.  Rugg,  et  al,  1 
N.  l5.  230,  46  N.  W.  446.  What  a  Sufficient  Record.  A  record  showing 
the  motion  for  new  trial  was  made  on  a  bill  of  exceptions  which  contains  a 
notice  of  intention  to  move  for  a  new  trial  which  specifies  and  definitely 
points  out  the  particulars  in  which  the  evidence  is  insufficient,  etc.,  is  suffi- 
cient to  present  that  question.     Mattoon  v.  F.  &  M.  V.  R.  Co., S.  D  . . ,, 

60  N.  W.  740.  What  an  Iijsufficient  Record.  Where  the  notice  of  inten- 
tion alleges  insufficiency  of  evidence,  and  errors  in  law  occurring  at  the 
trial,  the  record  upon  which  the  motion  for  new  trial  is  heard  containing 
no  further  specification,  either  of  alleged  errors  in  law  or  the  particulars  in 
which  the  evidence  is  insufficient,  the  trial  court  may   properly  deny  the 

motion  as  to  those  grounds.     Billingsly  v.  Hiles S.  D ,  61  N.  W. 

687;  Haynes,  New  Tr.  &  App.  sec.  149,  et  seq. 

(c).  Statutory  Grounds— General  Statement  Insufficient.  Where 
the  notice  of  intention  states  generally  the  statutory  grounds  for  a  new  trial, 
including  the  insufficiency  of  the  evidence,  but  no  further  specification  of 
the  particulars  in  which  such  evidence  is  insufficient  is  made,  either  in  the 
statement  upon  which  the  motion  for  a  new  trial  is  made  or  in  the  assign- 
ments of  error  or  argument  in  this  court,  such  objection  will  not  be  con- 
sidered. Nat'l.  Cash  Register  Co.  v.  Pfister  et  al,  5  S.  D.  143,  58  N.  W.  270; 
Pierce  v.  Manning,  1  S.  D.  306,  51  N.  W.  332.  General  Notice  Followed 
by  Specifications.  Where  the  notice  of  intention,  made  after  the  entry  of 
judgment,  designated  -'errors  in  law  occurring  at  the  trial,  and  excepted 
to  by  the  defendant,  which  are  fully  stated  in  said  bill  of  exceptions,  and  errors 
of  the  court  in  making  the  findings  of  fact  in  said  action,  and  excepted  to 
by  the  said  defendant,"  followed  by  a  specification  of  error  as  to  each  finding 
of  fact,  such  notice  of  intention  is  sufficient,  though  the  ground  designated 
is  not  stated  in  the  language  of  the  statute.  Barnard  &  Leas  Mfg.  Co.  v. 
Galloway  et  al,  5  S.  D.  205,  58  N.  W.  565.    What  For  Review.     Held,  how- 


180  CODE  OF  CIVIL  PROCEDURE. 

ever,  in  that  case,  that  the  only  matters  before  the  court  for  review  are  the 
errors  of  law  occurring  at  the  trial;  citing  Hawkins  v.  Hubbard,  2  S.  D.  631, 
51  N.  W.  774;  Morris  v.  Nilea,  67  Wis.  341,  30  N.  W.  353;  Latimer  v.  Mor- 
rain,  43  Wis.  107. 

SUBDIVISION  2.     Bill— Statement 

(a).  Settlement  of  Bills,  Etc.,  Not  Jurisdictional— Discretion.  Un- 
der existing  statutes,  settling  bills  of  exceptions  and  statements,  and  giving 
notice  of  intention,  etc.,  are  not  jurisdictional  in  nature.  Until  time  for  ap- 
peal has  expired  all  steps  leading  up  to  and  including  motion  for  new  trial 
may  be  taken  at  any  time  allowed  in  sound  judicial  discretion,  and  this  court 
will  presume  that  such  discretion  is  properly  exercised.  Johnson  v.  North- 
ern Pac.  R.  Co.,  1  N.  D.  354,  48  N.  W.  227;  sec.  5093,  Comp.  Laws.  Where 
no  Bill  Existed.  For  a  case  where  it  was  lield,  in  absence  of  notice  of  set- 
tlement of  bill  of  exceptions  or  of  service  of  proposed  bill,  or  of  an  order  pur- 
porting to  settle  one,  that  no  bill  of  exceptions  existed,  see  Wood  v.  Nissen, 
2  N.  D.  26,  49  N.  W.  103. 

(b).  SvifB^cient  Specification  in  Motion.  A  specification  in  a  motion 
for  a  new  trial,  "that  the  verdict  is  contrary  to  the  law  and  facts,  in  that  the 
negligence  of  the  defendant  was  the  proximate  cause  of  injury  to  the  plaint- 
iff, and  that  there  is  no  evidence  in  the  case  that  shows  that  the  plaintiff 
was  guilty  of  any  negligence  whatever,"  sufficiently  designates  the  statutory 
ground,  and  entitles  plaintiff  to  have  the  subject  therein  specified  examined 
on  motion  for  a  new  trial.  Alt  v.  Chicago  &  N.  W.  Ry.  Co.,  5  S.  D.  20,  57 
N.  W.  1126;  2Thorap.  Trials,  2755;  Elliott,  App.  Proc,  854.  Point  Out 
Particular  Error.  The  particular  error  upon  which  the  motion  for  a  new 
trial  or  a  reversal  of  the  judgment  is  relied  upon,  should  be  pointed  out. 
Assignments  of  error  in  this  case  held  bad.  Bush  et  al  v.  Northern  Pac. 
Ry.  Co.,  3  Dak.  444.  22  N.  W.  508;  Caul  field  v.  Bogle,  2  Dak.  464,  11  N.  W. 
511.  Insufficient  Exception.  An  exception  to  "all  charges  and 
to  the  special  charge  asked  by  defendant  for  the  reason  that 
they  are  liable  to  mislead  the  jury,  and  for  the  reason  that  the 
jury  in  its  verdict  would  pass  upon  these  questions,"  is  insufficient, 
and  does  not  entitle  plaintiff  to  have  instructions  considered  on  motion  for 
new  trial.  Alt  v.  Chicago  &  N.  W.  Ry.  Co.,  5  S.  D.  20,  57  N.  W.  1126; 
Hayne,  New  Tr.  &  App.  sec.  128;  2  Thomp.  Trials,  2398;  Elliott,  App.  Proc. 
791;  Smith  v.  Coleman  (Wis.),  46  N.  W.  664;  Carroll  v.  Williston  (Minn.), 
Id.  352. 

"Unspecified  Errors  Disregarded.  Errors  not  specified  in  bill  of  ex- 
ceptions, where  motion  for  new  trial  is  based  thereon,  must  be  disregarded. 
Illstad  V.  Anderson,  2  N.  D.  167,  49  N.  W.  659.  No  Specifications,  No  Re- 
view—Court Trials.  Where  the  bill  of  exceptions  embodied  no  specifica- 
tions of  error,  /ieW,  on  appeal  from  an  order  denying  motion  for  new  trial, 
that    alleged  errors   of  law  occurring  at  the  trial  will  not  be  reviewed. 


APPLICATION — WHEN   HEARD— PAPERS.  181 

Schmitz  V.  Heger,  . . .  .N.  D ,  64  N.  W.  943;  Hostetter  v.  Elevator  Co.,  4 

N.  D.  357,  61  N.  W.  49;  First  Nat.  Bank  v.  Merchant's  Nat.  Bank  of  Devil's 

Lake,    N.    D ,  64  N.  W.  941;  and  this  rule  applies  to  cases  of  trial 

to  the  court,  where  no  motion  for  new  trial  is  made  below;  Hostetter  v. 
Brooks  Elevator  Co.,  supra;  Laws  1891,  N.  D.,  Ch.  121;  Sup,  Ct.  Rule 
No.  13. 

(c.)  Agreed  Statement  Mere  Evidence.  An  agreed  statement  of 
facts  is  not  a  sufficient  record,  but  is  mere  evidence.  And  whether  the  rec- 
ord for  use  in  the  appellate  court  be  by  bil]  of  exceptions,  or  statement  used 
on  motion  for  a  new  trial,  as  in  section  5090,  it  must  be  certified  to  and  signed 
by  the  judge.  Sweet  et  al  v.  Myers  et  al,  3  S.  D.  324,  53  N.  W.  187;  Coonrod 
V.  Anderson  (Ark,),  18  S.  W.  373;  Ins.  Co.  v.  Harris,  108  Ind.  392,  9  N.  E. 
299;  Abrahams  v.  Sheehan,  27  Minn.  401,  7  N.  W.  822;  Ins.  Co.  v.  De  Graff, 
12  Mich.  10;  Haynes  v.  City  of  Cape  May  (N.  J.  Err.  &  App.)  19  Atl.  176; 
Howard  v.  Ross  (Wash.),  28  Pac.  526.  Evidence  to  Be  in  Bill— Order. 
The  evidence  will  not  be  considered  on  appeal,  unless  embodied  in  a  bill  of 
exceptions,  and  this  applies  to  review  of  an  order.  Merchants'  Nat.  Bank  v. 
McKinney  et  al,  . . .  ,  S.  D 60  N.  W.  162. 

Ex  Parte  Orders  Extending'  Time,  Presumed  Valid.  Ex  parte  or- 
ders extending  time  for  settling  a  bill  of  exceptions,  no  reason  being  stated 
of  record  therefor,  are  prima  facie  valid  under  objection,  and  will  be  pre- 
sumed, nothing  to  contrary  appearing,  that  they  were  made  for  good  cause. 
Johnson  v.  Northern  Pac.  R.  Co.,  1  N.  D.  354,  48  N.  W.  227;  4  Wait's  Pr. 
595;  sec.  4828  Com  p.  Laws.  Settled  After  Time  Without  Order.  A  bill 
may  be  settled  after  expiration  of  statutory  time,  without  making  an  order 
extending  the  time;  the  order  settling  the  bill  operating  to  extend  time. 
Johnson  v.  Northern  Pac.  R.  Co.,  1  N.  D.  354,  48  N.  W.  227;  sec.  4939,  5093, 
Comp.  Laws;  Volmer  v.  Stagerman,  25  Minn.  244.  Inexcusable  Delay.  A 
delay  of  over  four  years  after  a  verdict  in  seeking  to  settle  a  bill  of  excep- 
tions, the  excuse  being  "deponent's  misconstruction  of  the  law  in  relation  to 
bills  of  exception,"  is  not  justified,  and  such  showing  is  not  good  cause  un- 
der sec.  5093,  Comp.  Laws.  Moe  v.  Northern  Pac.  R.  Co.,  2  N.  D.  282,  50 
N.  W.  715;  Welch  v.  County  Court  (W.  Va.),  1  S.  E.  337. 

SUBDIVISION  3,— On  Statement 

Must  Specify  What  Insufficiency.  When  a  party  claims  the  evidence 
is  insufficient  to  justify  the  verdict,  he  must  specify  the  particulars  in  which 
such  evidence  is  insufficient.  The  objection  must  be  stated,  with  so  much 
of  the  evidence  or  other  matter  as  is  necessary  to  explain  it,  and  no  more. 
Holcomb  et  al  v.  Keliher,  Tr,  3  S.  D.  497,  54  N.  W.  535;  Hidden  v.  Jordan, 
28  Cal.  312.  Exceptions  Disregarded.  This  court  will  disregard  excep- 
tions contained  in  the  bill  of  exceptions,  and  so  would  the  court  below  on 
motion  for  new  trial,  as  none  of  the  errors  in  the  bill  have  been  particularly 
specified.     Gould  v.  Duluth  &  Dak.  Elevator  Co.,  2  N.  D.  216,  50  N.  W.  969; 


182  Code  op  civil  procedure;. 

sec.  5090,  Comp.  Laws,  subd.  3.  Statement  of  Case— Insufficient— Incur- 
able. Treating  the  record  in  question  as  a  statement  of  the  case  and  not  a 
bill  of  exceptions,  it  failing  to  specify  errors  of  law  relied  on,  and  failing  to 
specify  particulars  wherein  evidence  is  insufficient,  the  trial  court  rightly 
denied  the  motion  for  new  trial;  and  these  omissions  are  not  cured  by  as- 
signment of  errors  in  this  court.     Billingsley  et  al  v.  Hiles  et  al, S.  D. 

,61  N.  W.  687;  Haynes,  New  Tr.  &  App.  sec.  149,  et  seq. 

SUBDIVISION  4,— On  Minutes. 

Specifications — Nothing  For  Review.  Where  the  motion  for  a  new 
trial  was  made  upon  the  minutes  of  the  court,  the  notice  of  intention  assign- 
ing errors  in  law,  but  making  no  specifications,  as  required  by  subdivision 
4,  there  is  nothing  for  review  in  this  court  except  the  sufficiency  of  the  evi- 
dence to  justify  the  verdict.     Bauder  v.  Schamber, S.  D ,  63  N.  W. 

227.  When  Only  Statutory  Statement  Required.  The  notice  of  intention, 
except  when  tbe  notice  is  upon  the  minutes  of  the  court,  is  only  required  to 
state  generally  "the  statutory  grounds  upon  which  the  motion  will  be 
made;"  but  a  bill  of  exceptions  or  statement  on  motion  for  a  new  trial,  used 
on  appeal,  must  specify  the  particular  grounds  upon  which  the  moving  and 

appealing  partj'  will  rely.     Chandler  v.  Kennedy,  . . . .  S.  D ,  65  N,  W. 

439. 

VERDICT  VACATED  ON  COURT'S  MOTION.  §  5091,  Comp. 
Laws;  §  5475,  Rev,  Codes,  N.  D.  The  verdict  of  a  jury  may 
also  be  vacated,  and  a  new  trial  granted  by  the  court  in  which 
the  action  is  pending,  on  its  own  motion,  without  the  applica- 
tion of  either  of  the  parties,  when  there  has  been  such  plain 
disregard  by  the  jury  of  the  instructions  of  the  court,  or  the 
evidence  in  the  case,  as  to  satisfy  the  court  that  the  \rerdict 
was  rendered  under  a  misapprehension  of  such  instructions,  or 
under  the  influence  of  passion  or  prejudice. 

Sec.  289  C.  C.  P.;  Levisee,  p.  86;  Harst.  Pr.,  Deer.  Code,  I  662. 

Consult  decisions  under  subd.  1,  2,  and  5,  of  sec.  5088,  Comp.  Laws;  sec. 
5472,  Rev.  Codes,  supra. 

Vacating  of  "Without  Authority— No  Application,  Where  no  notice 
of  intention  was  served,  and  service  thereof  was  not  waived,  and  a  motion 
for  judgment  on  the  verdict  was  served  by  plaintiff,  which  motion  was  de- 
nied, in  the  order  denying  which  motion  the  verdict  was  set  aside,  and  a 
new  trial  granted;  /leZd,  that  the  order  vacating  the  verdict  was  without' 
authority  of  law,  and  is  reversible  error;  no  application  for  a  new  trial  hav- 
ing been  made  by  either  party.  Gould  v.  Duluth  &  Dak.  Elevator  Co.,  2 
N.  D.  216,  50  N.  W.  969;  Hayne  New  Tr.  &  App.,    sees.  10,    11,   pp.  50,  51. 

Clear  Disregard  of  Instructions— Passion  or  Prejudice.  A  verdict 
of  a  jury,  to  which  neither  party  has  objected,   should  only  be  vacated  on 


Af  t>LtCATlON — WHEN  ttfeARD — t>APERS.  l83 

the  court's  own  motion,  where  there  has  been  such  clear  disregard  of  the 
instructions  or  evidence  that  the  court  is  at  once  satisfied  without  mature 
reflection  or  the  aid  of  argument  that  the  verdict  is  the  result  of  passion  or 
prejudice,  or  was  rendered  under  a  misapprehension  of  the  court's  instruc- 
tions; and  the  order  should  be  made  promptly  upon  the  coming  in  and  entry 

of  the  verdict.     Clement  v.  Barnes, S.  D ,  61  N.   W.  1126;    Gould 

V.  Elevator  Co,,  2  N.  D.  216,  50  N.  W.  969;  Hayne  New  Tr.  &  App.,  sec.  10, 
11.  The  court  in  Clement  v.  Barnes,  supra,  quote  with  approval  the  follow- 
ing language  of  the  court  in  Gould  v.  Elevator  Co.,  supra:  "In  this  state, 
and  in  the  late  territory,  the  instances  of  vacating  verdicts  and  granting 
new  trials  without  application  of  the  parties  have  been  exceedingly  rare, 
and  no  such  summary  action  should  be  taken  except  in  cases  falling  clearly 
within  the  statute,  and  then  the  order  should  be  made  promptly  on  coming 
in  of  the  verdict."  And  the  following  language  is  quoted  approvingly  from 
Hayne  on  New  Tr.  &  App.,  sec.  10:  "With  respect  to  verdicts,  the  better 
opinion  seems  to  be  that  the  judge  can  grant  a  new  trial  of  his  own  motion 
only  at  the  time  the  verdict  is  rendered,  *  *  *  as  the  statute  gives  the 
power  in  those  cases  only  in  which  the  error  of  the  jury  is  so  gross  as  to  be 
at  once  apparent,  and  requires  the  court  to  exercise  it  as  soon  as  the  verdict 
is  rendered." 

APPLICATION— WHEN  AND  WHERE  HEARD— NOTICE—PAPERS. 
§  5092  Comp.  Laws;  §  5476  Rev.  Codes,  N.  D.  The  application 
for  a  new  trial  shall  be  heard  at  the  earliest  practicable  period 
after  service  of  notice  of  intention,  if  the  motion  is  to  be  heard 
upon  the  minutes  of  the  court,  and  in  other  cases,  after  the  affi- 
davits are  served  or  the  bill  of  exceptions  or  statement,  as  the 
case  may  be,  is  filed,  and  may  be  brought  to  a  hearing  in  open 
court  or  before  the  judge  at  chambers,  in  any  county  in  the  dis- 
trict in  which  the  action  was  tried,  by  either  party,  upon  notice 
of  eight  days  to  the  adverse  party,  specifying  the  time  and 
place  of  hearing.  On  such  hearing  reference  may  be  had  in  all 
cases  to  the  pleadings  and  orders  of  the  court  on  file,  and  when 
the  motion  is  made  on  the  minutes,  reference  may  also  be  had 
to  any  depositions,  documentary  evidence  and  stenographic 
report  of  the  testimony  on  file.  (Sec.  7,  chap.  21,  Laws  1887, 
Dak.) 

[Sec.  5476,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "or 
the  bill  of  exceptions  or  statement,  as  the  case  may  be,"  are  substituted  by 
the  term  "or  the  statement  of  the  case."    (As  am'd,  Rev.  Com'rs.)] 

Har&t.  Pr.  Deer.  Code,  sec.  660. 


184  CODE  Ol?  CIVIL  PROCEDURE. 

Consult  sec.  5090,  Comp.  Laws,  sec.  5474  Rev.  Codes  N.  D.  and  decisions 
thereunder. 

[Sec.  290  C.  C.  P.  relating  to  hearing  the  motion  before  a  trial  judge 
residing  in  another  county  than  that  in  which  the  trial  was  had,  in  the 
county  of  his  residence,  is  understood  to  have  been  repealed  by  the  Act  of 

1887.]  ♦ 

Notice  of  Intention,  and  of  Motion,  United— Time.  It  is  bad  prac- 
tice to  unite  in  the  same  instrument  notice  of  intention  to  move  and  notice 

of  motion  for  a  new  trial.     Anderson  v.  First  Nat.  Bank  of  Grand  Forks, 

N.  D ,  64  N.  W.  114.     In  this  case  the  court  say:     "It  was  urged  on  the 

argument  that  the  order  denying  the  motion  for  a  new  trial  should  be  af- 
firmed, for  the  reason  that  it  appears  that  the  notice  of  intention  to  move 
for  a  new  trial  was  not  served  within  the  statutory  time.  But  an  examina- 
tion of  the  record  satisfies  us  that  the  time  in  which  to  serve  such  motion 
was  extended  by  the  court,  and  that  the  notice  was  served  within  the  time 
as  so  extended.  Nor  do  we  think.there  is  any  force  in  the  contention  that 
the  paper  so  served  was  not  a  notice  of  intention.  It  is  true  that  it  was  bad  in 
form,  in  that  it  embodies  a  notice,  not  only  that  plaintiff  intended  to  move 
for  a  new  trial  on  the  grounds  therein  stated  on  a  statement  of  the  case,  but 
that  he  would  bring  his  motion  for  such  new  trial  on  to  a  hearing  at  a  speci- 
fied time  and  place.  The  notice  of  intention  and  the  notice  of  motion  are 
two  distinct  and  utterly  different  notices,  and  it  is  not  good  practice  to  em- 
brace both  elements  in  one  paper.  Sections  5090,  5092,  Comp.  Laws.  The 
notice  of  intention  should  not  state  when  and  where  the  motion  for  a  new 
trial  will  be  heard.  As  a  general  rule,  the  person  who  desires  to  make  such 
motion  is  not  in  position  to  notice  his  motion  for  a  hearing  at  the  time  he 
serves  his  notice  of  intention,  for  it  often  happens  that  at  that  time  the  bill 
or  statement  has  not  been  settled." 

Neither  a  Bill  nor  Statement — No  Notice  of  Settlement.  In  Wood 
V.  Nissen,  2  N.  D.  2H,  49  N.  W.  103,  upon  an  appeal  from  a  judgment,  it  was 
held,  where  no  proposed  bill  of  exceptions  or  statement  of  case  was  ever 
served,  and  no  notice  given  stating  the  time  and  place  when  and  where  a 
bill  or  statement  would  be  presented  to  the  trial  court  for  settlement  and 
allowance,  and  no  order  was  made  by  the  trial  court  purporting  to  settle  or 
allow  one;  and  where  no  attempt  was  made  in  the  transcript  to  specify  er- 
rors of  law,  or  to  indicate  wherein  the  evidence  is  insufficient  to  justify  the 
findings  of  fact,  but  where,  after  the  appeal,  a  transcript  of  proceedings  at 
the  trial,  embracing  the  stenographer's  transcript  of  evidence,  was  annexed 
to  the  judgment  roll  by  order  of  the  trial  judge  and  sent  up  as  part  of  the 
record; — that  such  transcript  is  neither  a  bill  of  exceptions  nor  a  statement 
of  the  case,  and  constitutes  no  part  of  the  judgment  roll.  Citing  Harper  v. 
Minor,  27  Cal.  107;  Button  v.  Reed,  25  Cal.  479. 

[Author's  Note.  The  following  California  decisions,  bearing  upon  a 
somewhat  similar  section  of  the  Code  of  that  state  (sec.  660,  cited  supra),  are 
cited  as  bearing  upon  the  section  under  consideration.] 


APPIJCATION — WHEN   HEARD— PAPERS.  185 

Due  Diligence — Dismissal.  If  the  motion  is  not  prosecuted  with  due 
diligence,  it  should  be  dismissed.  Eckstein  v.  Calderwood,  27  Cal.  413. 
Statem.ent  After  Time — Dismissal.  Where  the  statement  was  not  served 
in  time,  an  order  dismissing  a  motion  for  a  new  trial  was  sustained.  Chase 
V.  Evoy,  58  Cal.  348.  See,  further,  as  to  dismissing  the  motion  for  writ 
of  prosecution,  Liquore  v.  Mariscaus,  11  Pac.  C.  L.  J.  56;  People  v.  Center, 
6  Cal.  191.  Rule  of  Court.  A  rule  of  court  that  a  motion  for  a  new  trial 
must  be  brought  to  hearing  within  thirty  days  after  the  trial  cannot  be  up- 
held. Warden  v.  Mendocina  Co.,  32  Cal.  655  (658).  Delay— Discretion. 
The  question  of  delay  is  largely  in  the  discretion  of  the, court  below,  and  un- 
less there  is  clearly  abuse  it  will  not  be  interfered  with.  Boggs  v.  Clark,  37 
Cal.  237;  Chavot  v.  Tucker,  39  Cal.  435;  Hopkins  v.  R.  R.  Co.,  44  Cal.  389. 
Terms — Costs.  Equitable  terms  may  be  imposed  upon  granting  a  new  trial. 
Rice  V.  Gashirie,  13  Cal.  54;  such  as  payment  of  costs:  Sherman  v.  Mitchell, 
46  Cal.  577;  Cordor  v.  Morse,  57  Cal.  301;  or  unless  plaintiff  will  remit  some 
portion  of  his  demand:  Gillespie  v.  Jones,  47  Cal.  264;  Dreyfus  v.  Adams,  48 
Cal.  132;  Gregg  v.  R.  R.  Co,,  59  Cal.  312.  Where  costs  are  imposed  as  such 
terms,  accepting  the  same  is  not  a  waiver  of  right  of  appeal.  Tyson  v. 
Wells,  1  Cal.  379.  Order  Dismissing  Motion,  Appealable,  An  order  dis- 
missing a  motion  for  a  new  trial  for  want  of  prosecution,  is  regarded  as  an 
order  denying  the  motion,  and  appealable  as  such.  VoU  v,  Hollis,  60  Cal, 
569;  Warden  v.  Mendocino  Co.,  32  CaK  655. 

Sec.  5093,  Comp,  Laws;  §  5477,  Rev.  Codes,  N.  D,  The 
court  or  judge  may,  upon  good  cause  shown,  in  furtherance  of 
justice,  extend  the  time  within  which  any  of  the  acts  mentioned 
in  sections  5083  and  5090  may  be  done,  or  may,  after  the  time 
limited  therefor  has  expired,  fix  another  time  within  which  any 
of  such  acts  may  be  done,     (Sec.  8,  chap.  21,  Laws  1887,  Dak. ) 

[Sec.  5477,  Rev,  Codes,  N.  D.,  is  the  same,  except  that  where  sec.  5093 
refers  to  sec.  5083,  Comp,  Laws,  the  N.  D.  section  refers  to  sec.  5467,  Rev. 
Codes,  and  where  the  former  refers  to  sec.  5090,  Comp.  Laws,  the  latter  re- 
fers to  sec.  5474,  Rev.  Codes.     (As  Am'd,  Rev.  Com'rs.)] 

Consult  sees.  5090,  5092,  Comp.  Laws,  sec.  5474,  5476,  Rev.  Codes,  N.  D., 
and  decisions  thereunder. 

Section  Construed— Judicial  Discretion — Record.  In  Moe  v.  North. 
Pac.  R.  Co.,  2  N.  D.  282.  50  N.  W.  715,  this  section  is  construed;  and  it  is 
lield,  that  the  authority  therein  conferred  to  extend  the  time  and  settle  bills 
of  exception  and  statements  after  the  statutory  periods  therefor  have  ex- 
pired is  not  an  absolute,  non-reviewable  discretion,  but  is  a  sound  judicial 
discretion,  exercisable  only  upon  the  conditions  named  in  the  statute — i.  e., 
"upon  good  cause  shown  in  furtherance  of  justice,"  Where  the  cause  shown 
is  upon  the  record  in  the  court  below,  and  objection  to  the  action  of  the 


186  COt)E  OP  CIVIL  PROCEDUREJ. 

court  below  in  settling  the  bill  or  statement  is  properly  made,  this  court, 
upon  s  motion  to  purge  its  records,  will  review  the  cause  shown;  and  if  in 
the  opinion  of  this  court  good  cause  was  not  shown  for  settling  the  bill  or 
statement  after  time,  such  motion  will  be  granted,  and  the  bill  or  statement 
stricken  out.  Id.  Delay— Misconstruction  of  Law.  In  Moe  v.  Northern 
Pac.  R.  Co.,  supra,  the  bill  was  not  settled,  nor  sought  to  be  settled  for 
nearly  four  years  after  verdict;  the  only  excuse  offered  for  plaintiff's  laches 
and  default,  and  for  extending  the  time,  being  that  "Such  error  was  occas- 
ioned by  opponent's  misconstruction  of  the  law  in  relation  to  bills  of  excep- 
tion upon  appeal  to  the  supreme  court."  Held,  that  this  is  not  "good  cause 
shown."  within  the  meaning  of  this  section.  Ignwantia  legis  non  excusat. 
Citing  Welch  v.  County  Court  (W.  Va.),  1  S.  E.  337. 

Ex  Parte  Extension  of  Time— Presumption.  Where  the  district 
court  by  ex  parte  orders  duly  served,  enlarged  the  time  for  settling  a  bill, 
no  reason  being  brought  upon  record  for  granting  such  orders,  respondent's 
counsel  objecting  to  the  settlement,  Jield,  such  orders  were  such  as  the  court 
had  authority  to  make  ex  parte,  and  were  prima  facie  valid.  Nothing  ap- 
pearing to  the  contrary,  this  court  will  assume  that  they  were  based  upon  a 
proper  showing.  Johnson  v.  North.  Pac.  R.  Co.,  1  N.  D.  354,  48  N.  W.  227. 
In  this  case  the  decisions  in  various  other  states,  in  holding  otherwise,  are 
held  to  be  not  in  jwint,  being  based  upon  statutes  which,  either  in  terms  or 
by  implication,  inhibit  such  action  being  taken  after  the  time  limited  bylaw 
has  expired.  Order  Settling,  Operates  to  Extend — Jurisdiction — Pre- 
sumption. After  the  time  granted  for  settling  a  bill  had  expired,  the  dis- 
trict court,  without  making  an  oi'der  extending  time,  and  against  objection, 
settled  and  allowed  the  bill.  Held,  not  error.  The  order  of  settlement  op- 
erated to  extend  the  time  until  date  of  actual  settlement;  that  it  is  within 
the  power  of  the  court  under  the  Code,  either  to  enlarge  time,  or  allow  an 
act  to  be  done  after  the  time  limited  by  the  Code.  Corap.  Laws,  sees.  4939, 
5093.  That  under  the  statutes,  settling  bills  of  exception  and  statements, 
and  giving  notice  of  intention  to  move  for  a  new  trial,  are  not  jurisdictional 
in  nature.  That  until  the  time  for  appeal  has  expired,  all  steps  leading  up 
to  and  including  motion  for  new  trial  may,  after  statutory  time  has  elapsed, 
be  taken  at  any  time  allowed  by  the  sound  judicial  discretion  of  the  trial 
court.  This  court  will  presume  such  discretion  is  properly  exercised  in  all 
cases  unless  the  contrary  appears.  Johnson  v.  North.  Pac.  R.  Co.,  1  N.  D. 
354,  48  N.  W.  227;  Volmer  v.  Stagerraan,  25  Minn.  244;  4  Wait's  Pr.  595. 

Notice  of  Intention  Too  Late— Constructive  Extension.  The  fact 
that  notice  of  intention  is  not  served  within  the  statutory  time  is  not  good 
ground  for  dismissing  the  appeal,  but  might  preclude  this  court  from  re- 
viewing any  question  of  sufficiency  of  the  evidence,  which  can  only  be  re- 
viewed after  a  motion  for  a  new  trial  has  been  made  and  determined.  In 
this  case,  however,  it  appears  from  the  abstracts  that  a  motion   was  made 


APPLICATION — WHEN   HEARD — WHAT  PAPERS.  187 

by  the  respondent  in  the  court  below  to  strike  from  the  files  the  appellant's 
amended  and  substituted  notice  of  intention,  on  the  ground  that  it  was 
served  too  late.  That  court  denied  the  motion,  and  granted  the  appellant 
further  time  in  which  to  move  for  a  new  trial.  This  in  effect  was  an  exten- 
sion of  time,  or  the  fixing  of  a  new  time,  under  sec.  5093,  Comp.  Laws, 
"which  confers  upon  the  trial  court  the  power  to  grant  such  extension  or  fix 

another  time,  upon  good  cause  shown.     McKittrick  v.  Pardee, S.  D. 

. . . . ,  65  N.  W.  23;  Johnson  v.  R.  R.  Co.  1  N.  D.  354, 48  N.  W.  227.  Bill  of  Ex- 
ceptions Too  Late— Presumptive  Extension.     In  Gade  v.   Collins  et  al, 

S.  D ,  66  N.    W.  466,  in  passing  upon  the  question  of  the  scope  of 

the  review  of  the  case  in  the  supreme  court,  and  in  considering  the  objec- 
tion that  the  bill  of  exceptions  was  not  served  and  settled  within  the  statu- 
tory period,  the  court  holds  that  the  objection  is  not  good  in  that  case,  "for  the 
reason  that  it  does  not  affirmatively  appear  that  the  time  within  which  said 
notice  of  intention  and  bill  of  exceptions  could  be  served  was  not  extended, 
or  another  time  fixed,  as  provided  by  sec.  5093,. Comp.  Laws."  That  when 
it  is  not  affirmatively  shown  that  no  such  extension  has  been  granted,  or 
another  time  fixed,  as  provided  by  the  statute,  this  court  will  presume  that 
the  court  below  proceeded  regularly  and  according  to  the  statute;  citing 
Johnson  v.  R.  R.  Co.,  1  N.  D.  354,  48  N.  W.  227.  Incomplete  Record- 
Remedy  After    Appeal— Trial    Judge.     In   Foley-Wadsworth   Implement 

Co.  V.    Porteous, S.  D ,  63  N.  W.  155,  the  court,   in  holding  that 

the  record  there  before  it  was  not  complete  as  to  the  evidence,  and  that  the 
proper  practice  is  to  bring  the  fact  of  such  omission  to  the  appellate  court 
by  motion,  on  affidavits  or  the  certificate  of  the  judge  of  the  court  making 
the  order  appealed  from,  refer  to  the  remedy  of  appellant,  and  say:  "We 
feel  inclined  to  permit  appellant  to  perfect  his  record  if  he  can,  by  procur- 
ing a  bill  of  exceptions  to  be  settled  by  the  judge,  containing  the  oral  evi- 
dence given  on  the  hearing.  We  have  recently  held  in  mandamus  proceed- 
ings that  a  bill  of  exceptions  may  be  settled  by  the  judge  after  an  appeal  is 
perfected.  We  presume  that,  in  view  of  the  unsettled  practice  heretofore 
in  such  matters,  the  judge  who  tried  this  motion  in  the  court  below  will  be 
inclined  to  exercise  the  power  conferred  upon  him  by  section  5098,  Comp. 
Laws.  Must  Be  "Good  Cause  Shown."  Neither  the  trial  court  nor  the 
judge  thereof  is  authorized  to  extend  the  time  for  serving  and  settling  a  bill 
of  exceptions  or  a  statement,  or  to  fix  another  time  in  which  the  same  may 
be  served  and  settled  after  the  statutory  and  extended  time  has  expired,  ex- 
cept by  consent  of  the  adverse  party  or  for  "good  cause  shown."    McGilly- 

cuddy  V.  Morris  et  al, S.  D ,  65  N.   W.  14;  Johnson  v.   R.  R.  Co., 

1  N.  D.  354.  48  N.  W.  227;  Moe  r.  R.  R.  Co.,  2  N.  D.  282,  50  N.  W.  715.  . 

BILL  OR  STATEMENT  USED  ON  APPEAL— CONTENTS  OF.  § 
5094,  Comp.  Laws.  A  bill  of  exceptions  or  statement  of  the 
case  used  upon  the  hearing  of  a  motion  for   a  new  trial,  or  a 


188  CODE  OF  CIVIL  PROCEDURE. 

bill  of  exceptions  prepared  as  provided  in  section  5083,  or  a 
statement  of  the  case,  prepared  after  judgment  in  the  manner 
provided  in  section  5090,  and  within  the  same  time  after  judg- 
ment as  is  allowed  for  the  preparation  of  a  bill  of  exceptions, 
may  be  used  on  appeal  from  the  final  judgment;  such  statement, 
shall  only  contain  the  grounds  argued  before  the  court  for  a 
new  trial,  and  so  much  of  the  evidence  or  other  matter  as  may 
be  necessary  to  explain  them,  and  it  shall  be  the  duty  of  the 
judge  to  exclude  all  other  evidence  or  matter  from  the  state- 
ment.    (Sec.  9,  chap.  21,  Laws  1887,  Dak.) 

SAME.  §  5478  Rev.  Codes  N.  D.  A  statement  of  the  case 
settled  as  provided  in  section  5467,  whether  the  same  is  used 
upon  a  motion  for  a  new  trial  or  not,  may  be  used  on  appeal 
from  the  final  judgment.     (As  Am'd,  Rev.  Com'rs. ) 

Consult  sec.  5090,  5081,  Comp.  Laws;  sec.  5464,  5474,  Rev.  Codes,  N.  D. 
and  decisions  thereunder. 

For  appeals,  see  sec.  5213,  Comp.  Laws;  sec.  5603,  Rev.  Codes,  N.  D. 
et  seq. 

Review  of  Errors  Without  Motion  For  New  Trial,  When.  Where 
the  rulings  complained  of  were  preserved  in  a  bill  incorporated  with 
the  judgment  record,  but  no  motion  for  a  new  trial  was  made,  this  court 
will,  on  appeal  from  the  judgment,  review  alleged  "errors  of  law  occurring 
at  the  trial,"  appearing  of  record,  without  motion  for  a  new  trial  below. 
Sec.  5094,  Comp.  Laws,  indicates  that  a  bill  of  exceptions  not  used  on  mo- 
motion  for  new  trial  may  be  used  on  appeal  from  a  final  judgment.  San- 
ford  V.  Duluth  &  Dak.  Elevator  Co.  (or  Sanford  v.  Bell  et  al),  2  N.  D.  6,  48 
N.  W.  434;  Cravens  v.  Dewey,  13  Cal.  42;  Walls  v.  Preston,  25  Cal.  61;  Don- 
ahue V.  Gallavan,  43  Cal.  576;  Caldwell  v.  Parks,  47  Cal.  642;  Levy  v.  Getle- 
Bon,  27  Cal.  685;  Hayne  New  Tr.  &  App.  p.  311,  sec.  112.  Transcript  After 
Appeal — Judgment  Boll.  Where,  after  appeal  from  judgment,  a  trans- 
cript of  proceedings  at  the  trial,  embracing  the  transcript  of  the  evidence, 
was  annexed  to  the  judgment  roll  on  the  court's  order,  aud  sent  to  this 
court  as  part  of  the  record,  but  no  bill  or  statement  served  or  settled,  or  at- 
tempted to  be  settled,  no  specifications  of  error  appearing  in  the  transcript, 
held,  such  transcript  is  neither  a  bill  of  exceptions  nor  a  statement  of  case, 
and  is  no  part  of  the  judgment  roll;  and  no  error  appearing  upon  the  face 
of  the  record  proper,  the  judgment  below  is  affirmed.  Wood  v.  Nissen,  2 
N.  D,  26,  49  N.  W.  103;  Harper  v.  Minor,  27  Cal.  107;  Button  v.  Reed,  25 
Cal.  479.  Certified  Record  Under  N.  D.  Law — Purging  Record.  Upon 
an  appeal  from  an  order  denying  a  new  trial,  the  motion  for  a  new  trial  hav- 
ing been  heard  in  part  upon  certain   papers  and  documents  which,  on  ap- 


OP   APPEALS   IN   CIVIL   ACTIONS.  189 

peal,  have  been  properly  identified  by  the  judge]  and^certifled^by^the  clerk 
of  the  district  court,  a  motion  to  purge  the  record  of  such  papers  and  docu- 
ments because  same  are  not  authenticated  by  bill  or  statement,  cannot  be 
sustained.  Under  sec.  5,  chap.  120,  laws  1891,  N.  D.,  no  bill  or  statement  is 
required  to  bring  such  papers  and  documents  before  the  court.  Goose  River 
Bank  v.  Gilmore,  et  al,  3  N.  D.  188,  54  N.  W.  1032;  Bailey  v.  Scott,  1  S.  D. 
337,  47  N.  W.  286.  Error  Not  Made  Ground  For  New  Trial.  An  assign- 
ment of  error  that  the  verdict  is  not  sustained  by  the  evidence,  which  al- 
leged error  was  not  made  ground  upon  which  new  trial  was  asked,  is  not 
available  on  appeal,  no  specification  of  particulars  in  which  the  evidence  is 

claimed  to  be  insufficient  appearing  of  record.     Prye  et  al  v.  Ferguson, 

S.  D ,  61  N.  W.  161. 


CHAPTER  IX. 


OF  APPEALS  IN  CIVIL  ACTIONS. 

APPEALS  TO  SUPREME  FROM  CIRCUIT  COURT— WHEN.  §  5213 
Comp.  Laws.  Appeals  to  the  supreme  court  may  be  taken  from 
the  circuit  courts  when  no  other  court  of  appeal  is  provided  by 
law.     (Sec.  1,  chap.  20,  Laws  1887,  Dak.) 

SAME— FROM  DISTRICT  COURT  §  5603  Rev.  Codes  N.  D.  A 
judgment  or  order  in  a  civil  action  or  in  a  special  proceeding  in 
any  of  the  district  courts  may  be  removed  to  the  supreme  court 
*by  appeal  as  provided  in  this  chapter  and  not  otherwise.  (Sec. 
1,  chap.  120,  Laws  1891,  N.  D. ) 

Rev.  Stat.  Wis.  1878,  sec.  3047;  Wait's  Code  sec.  323;  Harst  Pr.,  Deer. 
Codel§.936. 

Sec.  403  C.  C.  P.;  Levisee  p.  118. 

Consult  the  next'three  sections  and  decisions  thereunder. 

Also  consult  sections  4819,  4820,  Comp.  Laws,  section  5165  Rev.  Codes 
N.  D.,  at  commencementof  Chap.  10.     Past. 

Constitutional  Provisions.  Sec.  2,  art.  5,  of  the  Constitution  of  South 
Dakota  and  sec.  86,  Constitution  of  North  Dakota,  contain  the  following  pro- 
vision: 

"The  supreme  court,  except  as^otherwise  provided  in  this  constitution, 
shall  have  appellate  jurisdiction  only,  which  shall  be  co-extensive  with  the 
state,  and  shall  have  a  general  superintending  control  over  all  inferior 
pourts  under  such  regulations  and  limitations  as  may  be  prescribed  by  law," 

Sec.  87,  Constitution  of  North  Dakota,  is  as  follows; 


190  CODE  OF  CIVIL  PROCEDURE. 

"It  shall  have  power  to  issue  writs  of  habeas  corpus,  mandamus,  quo 
warranto,  certiorari,  injunction,  and  such  other  original  and  remedial  writs 
as  may  be  necessary  to  the  proper  exercise  of  its  jurisdiction,  and  shall  have 
authority  to  hear  and  determine  the  same;  Provided,  however,  that  no  jury 
trials  shall  be  allowed  in  said  supreme  court,  but  in  proper  cases  questions 
of  fact  may  be  sent  by  said  court  to  a  district  court  for  trial." 

Sec.  3,  art.  6,  Constitution  of  South  Dakota,  is  as  follows: 

"The  supreme  court  and  the  judges  thereof  shall  have  power  to  issue 
writs  of  habeas  corpus.  The  supreme  court  shall  also  have  power  to  issue 
writs  of  mandamus,  quo  warranto,  certiorari,  injunction,  and  other  original 
and  remedial  writs,  with  authority  to  hear  and  determine  the  same  in  such 
cases  and  under  such  regulations  as  may  be  prescribed  by  law;  Provided, 
however,  that  no  jury  trials  shall  be  allowed  in  said  supreme  court,  but  in 
proper  cases  questions  of  fact  may  be  sent  by  said  court  to  a  circuit  court  for 
trial  before  a  jury." 

(a)  Jurisdiction  Primarily  Appellate.  The  jurisdiction  conferred 
upon  the  supreme  court  by  the  constitution  is  primarily  appellate,  and  that 
of  exercising  a  superintending  control  over  all  inferior  courts.  Everitt  v. 
Board  County  Com's  Hughes  Co.  et  al,  1  S.  D.  365,  47  N.  W.  296.  Sections 
86  and  87,  Constitution  N.  D.,  vests  in  this  court — First,  appellate  jurisdic- 
tion; second,  general  superintending  control  over  inferior  courts;  third, 
power  to  issue  the  writs  specified,  not  only  in  furtherance  of  other  jurisdic- 
tion, but  also  in  the  exercise  of  original  jurisdiction;  fourth,  authority  to 
issue  such  other  original  and  remedial  writs  as  may  be  necessary  to  the 
proper  exercise  of  the  jurisdiction  vested  in  this  c(?urt.  *  *  *  The  grant 
of  appellate  jurisdiction,  and  of  the  power  of  superintending  control,  carries 
with  it  all  writs  necessary  to  the  proper  exercise  of  such  jurisdiction  and  of 

such  power.     State  ex  rel  Moore  v.  Archibald, N.  D ,  66  N.  W.  234> 

Attorney  General  v.  Chi.  &  N.  W.  R.  Co.,  35  Wis.  425,  515;  Marbury  v. 
Madison,  1  Cranch  137;  Wheeler  v.  Irrigation  Co.,  9  Col.  248,  11  Pac.  103. 

Judgements  and  Coiirt  Orders  Appealable.  In  Commercial  Nat.  Bank 
V.  Smith,  1  S.  D.  28,  44  N.  W.  1024,  in  dismissing  an  order  there  involved, 
as  not  appealable,  the  court  say:  "The  statute  authorizes  appeals  from 
judgments  or  orders  of  the  court  only.  Sections  5213,  5236,  Comp.  Laws." 
Penalty — Municipal  Ordinance.  An  action  to  recover  a  penalty  prescribed 
by  municipal  ordinance,  not  made  a  criminal  act  by  the  general  law  of  the 
state,  but  forbidden  by  such  ordinance,  is  a  civil  action,  and  may  be  brought 

to  this  court  by  appeal.    City  of  Sioux  Falls  v.  Kirby, S.  D ,  60  N. 

W.  156;  City  of  Huron  v.  Carter,  5.  S.  D.  4,  57  N.  W.  947. 

Common  Law  and  Chancery — Territorial  Courts.  The  supreme  and 
district  courts  of  this  territory  possess  common  law  as  well  as  chancery  jur- 
isdiction, and  may,  and  their  judges  may  grant  writs  of  habeas  corpus  in  all 
cases,  and  in  similar  manner,   in  which  they  are  granted  by  the  federal 


OF   APPEALS   IN    CIVIL   ACTIONS.  191 

courts  and  judges.  U.  S.  ex  rel  Scott  v.  Burdick,  marshal,  1  Dak.  137,  46 
N.  W.  571;  Kendall  v.  U.  S.,  12  Pet.  624;  Decatur  v.  Paulding,  14  Pet.  601; 
U.  S.  V.  Williams,  4  Cr.  C.  C.  376. 

(b).     Habeas  Corpus. 

Fine  by  Justice— Jurisdiction.  On  application  to  this  court  for  writ 
of  habeas  corpus,  where  petitioner  was  convicted  in  justice's  court  of  a  mis- 
demeanor, and  fined,  and  in  default  of  payment  of  which  it  was  adjudged 
that  he  be  imprisoned  in  the  county  jail,  held,  that  so  much  of  the  judgment 
as  provided  that  defendant  stand  committed  until  the  costs  be  paid  was  un- 
authorized.    In  re  Lackey, S.  D ,  62  N.  W.  134.      Showing  of  No 

Evidence  Below— Appeal.  Where  the  district  court  ordered  a  corporation 
to  convey  its  realty  to  a  receiver  appointed  by  that  court,  and  for  refusal  to 
convey  which  property  its  president  was  adjudged  in  contempt,  and  commit- 
ted to  jail,  on  habeas  corpus  to  this  court,  held,  that  defendant  could  not 
show  that  the  district  court  had  before  it  in  the  contempt  proceeding  no  evi- 
dence "legal  or  sufficient"  to  prove  that  he  was  president  of  the  corporation, 
or  that  he  as  such  had  power  to  execute  the  conveyance.  Such  error  can  be 
reviewed  only  on  appeal  where  the  contempt  proceeding  is  civil  in  its_ char- 
acter, as  was  this  proceeding;  the  showing  olTered  to  be  made  only  going  to 
the  point  that  the  court  below  made  an  erroneous  decision  on  questions  of 
fact,  not  that  it  was  without  jurisdiction;  the  original  jurisdiction  of  this 

court  being  invoked  in  this  case.     State  ex  rel  Mears  v.  Barnes,  sheriff, 

N.  D.  .. .,  65  N.  W.  688;  Church  Hab.  Corp.  p.  451;  In  re  Rosenberg  (Wis.), 
63  N.  W.  1065;  People  v.  Liscomb,  60  N.  Y.  570;  ex  parte  Perkins,  18  Cal. 
64;  Forrest  v.  Price,  (N.  J.  Ch.)  29  Atl.  218:  State  v.  Houston  (La.),  4  South. 
131;  Ex  Parte  Perdue  (Ark.),  24  S.  W.  423. 

(c).     Mandamus. 

Constitution  Enlarges  Jurisdiction — When  Exercised.  The  clause 
in  art.  5,  sec.  2,  Constitution  of  this  state,  providing  that  the  supreme  court 
"shall  have  a  general  superintending  control  over  all  inferior  courts,  under 
such  rules  and  regulations  as  shall  be  prescribed  by  law,"  materially  en- 
larges the  ordinary  appellate  jurisdiction  conferred  upon  reviewing  courts; 
and  authorizes  this  court,  by  mandamus,  to  control  and  correct  proceedings 
of  an  inferior  court  where  the  action  complained  of  exceeds  the  jurisdic- 
tional powers  of  such  court,  or  there  has  been  manifest  abuse  of  discretion, 
and  where  the  case  is  urgent,  and  an  appeal  will  not  afford  an  adequate  rem- 
edy, and  the  circumstances  of  the  case  are  such  as  to  require  an  immediate 
review  of  the  proceedings;  and  includes  the  power  to  review  proceedings  of 
such  court,  and  to  determine  whether  the  case  is  a  proper  one  for  exercise 
of  the  authority  vested  in  this  court.  City  of  Huron  v.  Campbell,  Cir. 
Judge,  3  S.  D.  309,  53  N.  W.  182;-  State  v.  Judge,  36  La.  578; 
State  V.  Judge,  31  La.  794;  R.  R.  Co.  v.  Cir.  Judge,  44  Mich. 
479,    7    N.    W.    65;    Railway    Co.     v.    Judge    of    St.    Clair    Circuit,    31 


192  CODE  OF  CIVIL  PROCEDURE. 

Mich.  456;  City  of  Detroit  v.  Judge,  79  Mich.  384,  44  N.  W.  622. 
Proceeding  Not  Pending  Before  District  Judge.  In  a  mandamus  proceed- 
ing in  this  court,  petitioned  for  as  against  a  district  judge,  lield,  that  the 
writ  should  be  quashed,  it  appearing  that  the  motion  for  new  trial,  which  it 
had  directed  said  judge  to  decide,  was  not  pending  before  him  for  decision. 
State  ex  rel  N.  P.  R.  Co.  v.  Judge  of  Dist.  Court  of  Stutsman  Co.,  3  N.  D. 
43,  53  N.  W.  433.  Stay  on  Appeal  By  Corporation.  Judgment  against  a 
county  having  been  affirmed  by  Territorial  Supreme  Court,  and  an  appeal 
taken  to  Federal  Supreme  Court,  but  no  stay  of  execution  procured,  this 
court  in  exercise  of  its  discretion  in  mandamus  cases,  will  regard  the  policy 
of  this  jurisdiction,  that  an  appeal  to  a  state  court  by  a  municipal  corpora- 
tion shall  operate  as  a  stay  without  an  undertaking,  and  in  effect  give  the 
stay  by  withholding  mandamus  to  compel  levy  of  a  tax  to  pay  the  judg- 
ment until  final  decision  in  the  federal  court.  Territory  ex  rel  Wallace  et 
al  V.  Woodbury  et  al,  1  N.  D.  85,  44  N.  W  1077;  U.  S.  v.  County  Court,  122 
U.  S.  306,  7  Sup.  Ct.  1171  and  cases  cited;  Comp.  Laws,  sec.  5229;  High 
Extr.  Rem.,  sec.  9;  Devereaux  v.  City  of  Brownsville,  29  Fed.  742-751. 
Discretion — Caprice.  The  granting  or  withholding  of  writ  of  mandamus 
rests  in  a  measure  in  the  discretion  of  the  court,  but  that  discretion  may 
not  be  capriciously  exercised.  Territory  ex  rel  Wallace  et  al  v.  Wood- 
bury et  al,  1  N.  D.  85,  44  N.  W.  1077;  High  Extr.  Rem.  sec.  6,  9;  People  v. 
Common  Council,  78  N.  Y.  56-61. 

(d).     Certiorari. 

No  Other  Remedy.  On  application  to  this  court  for  writ  of  certiorari 
against  a  board  of  county  commissioners,  held,  under  sec.  5507,  Comp.  Laws, 
that  there  is  no  writ  of  error,  appeal,  nor  other  plain,  speedy,  and  adequate 
remedy  in  this  case,  and  that  a  writ  of  certiorari  properly  issued.  State  ex 
rel  Bollard,  attorney  general,  v.  Board  of  Co.  Com'rs  Hughes  Co.  et  al,  1  S. 
D.  292,  46  N.  W.  1127;  Waterworks  Co.  v.  Hughes  Co.,  5  Dak.  145,  37  N.W. 
733.  Has  Jurisdiction  to  Issue  Writ.  In  State  ex  rel  Dollard,  attorney 
general,  v.  Board  of  Co.  Com'rs  Hughes  Co.  et  al,  1  S.  D.  292,  46  N.  W.  1127, 
the  court  say,  after  quoting  sees.  2  and  3,  art.  5,  Const.  S.  D.:  ''The  su- 
preme court,  while  thus  primarily  and  generally  an  appellate  court,  has  un- 
doubted jurisdiction  to  issue  this  writ  of  certiorari,"'  etc. 

B>estitution  of  Property.  On  certiorari  this  court  has  power  to  order 
restitution  of  everything  taken  from  the  relator  under  the  void  proceeding 
which  is  annulled  herein.  State  ex  rel  Enderlin  State  Bank  v.  Rose,  Dist. 
Judge,  4  N.  D.  319,  58  N.  W.  514;  Peacock  v.  Leonard,  8  Nev.  247;  Arrow- 
smith  V.  Vandersdale,  21  N.  J.  Law  471;  Ex  parte  Shotwell,  10  Johns.  304;  2 
Spelling  Ex.  Rel.,  sec.  2042,  2044;  Duncan  v.  Kilpatrick,  13  Serg.  &  R.,  294; 
Flemings  v.  Riddick,  5  Grat.  272;  Heabler  v.  Myers,  132  N.  Y.  363,  30  N.  E. 
963;  Ex  parte  Morris,  9  Wall.  605;  Elliott  App.  Proc,  sec,  584;  Kennedy 
V,  Haner,  19  Cal.  374;  Harlan  v,  Scott,  2  Scam.   65;  Perry  v.  Tuper,  71  N. 


OF  APPEALS  IN  CIVIL  ACTIONS.  193 

C.  385;  Lee  Chuck  v.  Quan  Wo  Chonk,  81  Cal.  222,  22  Pac.  594.  Order  Not 
in  a  Proceeding— Void.  Property  having-  been  attached  in  hands  of  an  as- 
signee for  benetit  of  creditors,  the  district  judge  made  an  order  directing 
the  sheriff  to  surrender  possession  thereof  to  the  assignee  on  the  theory  that 
4;he  property  was  in  custody  of  the  court.  Such  order  was  not  made  in  any 
action  or  special  proceeding  pending  in  court;  was  granted  upon  a  mere  af- 
fidavit of  the  assignee,  without  hearing  the  sheriff  or  plaintiff  in  attach- 
ment, and  without  notice  to  them.  Held,  the  order  was  absolutely  void 
and  should  be  set  aside  on  certiorari.  Party  Beneficially  Interested.  Held, 
further,  that  plaintiff  in  the  attachment  suit  was  the  person  beneficially  in- 
terested, and  could  therefore  sue  out  the  writ.  State  ex  rel  Enderlin  State 
Bank  v.  Rose,  Dis.  Judge,  4  N.  D.  319,  58  N.  W.  514;  Parmer  v.  Cobban,  4 
Dak.  425,  29  N.  W.  12;  Wright  v.  Lee,  4  S.  D.  237,  55  N.  W.  931;  Adler  v. 
Ecker,  2  Fed.  126;  Lapp  v.  VanNorman,  19  Fed.  406;  Lesher  v.  Getman,  28 
Minn.  93,  9  N.  W.  585;  Lehman  v..  Rosengarten,  23  Fed.  642;  (party  bene- 
ficially interested)  People  v.  Andrews  52  N.  Y.  445,  Palmer  v.  Cir.  Judge, 
(Mich.)  47  N.  W.  3-55;  Town  of  Hillsboro  v.  Smith  (N.  C  ),  14  S.  E.  972; 
Hart  V.  Scott,  50  N.  J.  Law,  585,  15  Atl.  272;  Staates  v.  Inhabitants  of 
Washington,  44  N.  J.  Law  605;  Dexter  v.  Common  Council  (R.  I.),  21  Atl. 
347;  Miller  v.  Jones,  22  Cent.  Law  J.,  397;  Campau  v.  Button,  33  Mich.  525. 
Not  an  Adequate  Remedy.  Held,  further,  that  the  right  of  the  plaintiff 
to  hold  the  sheriff  responsible  for  the  property  attached,  for  the  reason 
that  he  could  not  justify  surrender  of  the  property  under  a  void  ^rder,  was 
neither  an  adequate  remedy  nor  a  speedy  remedy,  under  sec.  5507,  Comp. 
Laws;  held,  further,  that  such  remedy  against  the  sheriff  is  no  remedy  un- 
der that  section,  because  the  remedy  therein  referred  to  is  one  which,  like 
an  appeal  or  writ  of  error,  will  enable  the  relator  to  annul  the  proceed- 
ing complained  of  as  void.  State  ex  rel  Enderlin  State  Bank  v.  Rose,  Dist. 
Judge,  4  N.  D.  319,  58  N.  W.  514;  Starr  v.  Trustees,  6  Wend,  564;  People  v. 
Judges  of  Suffolk  Co.,  24  Wend  249;  2  Spelling  Extr.  Rel.,  sec.  1911  and 
cases  cited;  Cal.  Pqc.  R.  Co.  v.  Cent.  Pac.  R.  Co.,  47  Cal.  528;  LeGrand  v. 
Fairall  (la.),  53  N.  W.  115;  Ins.  Co.  v.  Duffie  (la.),  25  N.  W.  117. 

(e).  Review  Errors  of  Law— Without  Motion  for  New  Trial.  On 
appeal  from  a  judgment  this  court  will  review  alleged  "errors  of  law  occur- 
ring at  the  trial,"  and  appearing  in  a  bill  of  exceptions,  without  a  motion 
for  a  new  trial  in  the  court  below.  Sanford  v.  Bell  et  al,  (or  Sanford  v.  Du- 
luth  &  Dak.  El.  Co.),  2  N.  D.  6,  48  N.  W.  434;  Cravens  v.  Dewey,  13  Cal.  42; 
Walls  V.  Preston,  25  Cal.  61;  Donahue  v.  Gallavan,  43  Cal.  576;  Caldwell  v. 
Parks,  47  Cal.  642;  Levy  v.  Getleson,  27  Cal.  685;  Hayne  New  Tr.  &  App.  p. 
311,  sec.  112;  Nichols  v.  Bruns,  5  Dak.  28,  37  N.  W.  753,  Judgment  Before 
Motion  for  New  Trial— Review.  An  appeal  from  a  judgment  only,  that  is 
entered  before  a  new  trial  is  applied  for,  presents  for  review  errors  of  law 
13— T  P 


194  CODE  OF  CIVIL  PROCEDURE. 

brought  to  this  court  by  bill  of  exceptions.     Baird  et  al  v.  Gleckler,   S. 

D 64  N.  W.  118;  Jones  Lum.  &  Mer.  Co.  v.  Paris,  5  S.  D.  348,  58  N,  W. 

813;  Barnard  &  Leas  Mf'g  Co.  v.  Galloway  et  al,  5  S.  D.  205,  58  N.  W.  665; 
Pierce  v.  Manning,  2  S.  D.  517,  51  N.W.  332;  Miller  v.  Way,  5  S.  D.  468,  59 
N.  W.  467.  Judgment  Inconsistent  With  Complaint  -  Dismissal.  Where 
a  complaint  states  a  cause  of  action  equitable  in  character,  with  a  prayer  for 
an  ac(^ounting  with  numerous  persons  charged  in  a  fiduciary  capacity,  a 
judgment  at  law  entirely  inconsistent  therewith,  established  by  evidence 
against  one  defendant  only,  for  damages  for  breach  of  contract  to  pay  a  stip- 
ulated sum  of  money,  cannot  be  entered,  and  the  complaint  will  be  dismissed. 

Anderson  v,  Chilson  et  al S.  D ,  65  N.  W.  435;  Dal  ton  v.   Vander- 

veer  (Sup.),  29  N.  Y.  Supp.  342;  Parrish  v.  R.  R.  Co.  (Fla.),  9  South.  696; 
Lewark  v.  Carter  (Ind.  Sup.),  20  N.  E.  119;  Bradley  v.  Aldrich,  40  N.  Y.  504; 
Homer  v.  Homer,  107  Mass.  82;  Park  v.  Lide;  90  Ala.  246,  7  South.  805;  18 
Am.  &  Eng.  Ency.  Law,  p.  515. 

WRIT  OF  ERROR  UNNECESSARY— WHAT  REVIEWED—PARTIES. 
§  5214  Comp.  Laws.  No  writ  of.  error  shall  be  necesary  to 
bring  up  any  judgment  for  review  before  the  supreme  court, 
but  any  judgment  or  any  order  defined  in  section  5236  may  be 
reviewed  upon  an  appeal  by  the  party  aggrieved.  The  party 
appealing  is  called  the  appellant;  the  other,  the  respondent. 
(Sec.  2,  chap.  20,  Laws  1887,  Dak. 

SAME— PARTIES  ON  APPEAL  §  5604  Rev.  Codes  N.  D.  The 
party  appealing  is  known  as  the  appellant  and  the  adverse 
party  as  the  respondent,  but  the  title  of  the  action  is  not  to  be 
changed  in  consequence  of  the  appeal.  (Sec.  2,  chap.  120, 
Laws  1891,  N.  D. 

Rev.  Stat.  Wis.  1878,  sec.  3048. 

Sec.  405  C.  C.  P.;  Levisee  p.  118;  Wait's  Code,  sees.  323,  325, 11;  Harst. 
Pr.  sees.  936,  938. 

Consult  sees.  5236,  5237,  5238,  Comp.  Laws;  sees.  5626,  5627,  5628,  Rev. 
Codes,  N.  D. 

1.  "Any  Judgment"— Insertion  of  Costs.  In  the  case  of  Williams 
v.  Waite,  2  S.  D.  210,  49  N.  W.  209,  the  term  "any  judgment,"  used  in  this 
section,  is  construed,  in  connection  with  sec.  5024,  Comp.  Laws,  defining  a 
judgment;  and  it  was  luld,  that  a  judgment  is  appealable  although  the  costs 
below  have  not  been  taxed  and  inserted  in  the  entry  of  the  judgment  ap- 
pealed from;  citing  Stimson  v.  Huggins,  9  How.  Pr.  88;  Cord  v.  Southwell, 
15  Wis.  216;  Richardson  v.  Rogers,  37  Minn.  463,  35  N.  W.  270;  Adams  v. 
Smith,  6  Dak.  94,  50  N.W.  720;  Champion  v.  Board  of  Co.  Com'rs,  5  Dak. 
416,  41  N.  W.  739.     Judgment— License  of  Attorney— Appeal.     In  the  case 


OF  APPEALS  IN  CIVIL  ACTIONS.  195 

of  111  re  Houghton,  5  S.  D.  537,  59  N.  W.  733,  in  holding  that  the  appeal 
there  involved,  being  one  under  sec.  477,  Comp.  Laws,  from  a  judgment  re- 
voking the  license  of  an  attorney,  came  within  the  general  statute  requiring 
appeal  within  two  years  after  perfection  of  judgment,  the  court  say:  "The 
statute,  commencing  with  section  5213,  Comp.  Laws,  provides  how  and  with- 
in what  time  'any  judgment'  may  be  taken  by  appeal  from  the  district  (cir- 
cuit) to  the  supreme  court  for  review." 

[Author's  Note — The  cases  cited  below  under  this  section,  although 
nearly  or  quite  all  of  them  appear  under  the  chapter  on  "New  Trials,"  su- 
pra, are  here  cited,  as  they  are  cases  of  appeals  from  judgments  and  orders 
where  the  question  of  new  trial  was  not  involved.] 

2.     Generally. 

stable  Keeper's  Liien — Temporary  use  of  Horse.  The  lien  given  to  a 
stable  keeper  by  sec.  5486,  Comp.  Laws,  is  not  lost,  even  as  to  an  attaching 
creditor,  because  the  horse  is  temporarily  in  the  possession  of  the  owner 
when  levied  on,  who  is  using  it  in  the  usual  manner  ;  it  being  the  purpose 
of  the  owner  to  return  the  horse  to  the  stable  as  soon  as  he  finishes  his  tem- 
porary use  of  it;  the  arrangement  under  which  the  horse  is  being  boarded 
being  still  in  existence  at  the  time  of  the  levy.     Welsh  v.    Barnes,   sheriflf, 

....  N.  D ,65N.  W.   675;  Walls  v.  Long  (Ind.   App.),  28  N.  E.  101; 

Caldwell  v.  Tutt,  43  Am.  Rep.  307;  State  v.  Shevlin,  23  Mo.  App.  598; 
Young  V.  Kimball,  23  Pa.  St.  193. 

Percolating  Water — Ownership— Presumption.  Water  percolating 
through  the  soil  or  coming  to  the  surface  in  a  spriiig  belongs  to  the  owner 
of  the  soil  in  such   a  sense  and  to  such  an  extent  that  he  is  entitled  to  the 

exclusive  right  to  use  and  dispose  of  the  same.     Metcalf  v.  Nelson,    S. 

D ,65  N.  W.  911;  Comp.  Laws,  sec.  2771;  Wilson  v.  City  of  New  Bed- 
ford, 108  Mass.  265;  Roath  v.  Driscoll,  20  Conn.  533;  Village  of  Delhi  v. 
Youmans,  45  N.  Y.  362;  Frazier  v.  Brown,  12  Ohio,  St.  294;  City  of  Emporia 
v.  Soden,  25  Kan.  588;  R.  R.  Co.  v.  Dufour,  95  Cal.  615,  30  Pac.  783;  Clark 
V.  Conroe,  38  Vt.  469;  Taylo'r  v.  Pickas,  64  Ind.  167.  It  will  be  presumed 
that  a  natural  spring  of  water  is  formed  by  the  ordinary  percolation  of 
water  in  the  soil.  Metcalf  v.  Nelson,  ....S.  D ,  65  N.  W.  911.  Han- 
son V.  McCue,  42  Cal.  303;  Elster  v.  City  of  Springfield  (Ohio  Sup.),  30  N. 
E  278;  Swett  v.  Cutis,  50  N.  H.  439. 

Taxation — Unorganized  County— Situs.  Under  sec.  1557,  Comp. 
Laws,  personal  property  situated,  kept  and  owned  in  the  unorganized  coun- 
ty of  Piatt  in  the  year  1893  was  subject  to  taxation  for  state  purposes  in 
Stanley  county,  being  the   nearest  organized   county.     Dupree  v.    Stanley 

Co.  et  al S.  D ,  65  N.    W.   426;  Farris  v.    Vannier,  6  Dak.  186,  42 

N.  W.  31.  Dog  Tax  -Civil  Township  Credited— County.  Under  chap. 
121,  laws  1889,  as  amended  by  chap.  149,  laws  1890,  an  organized  civil 
township  is  entitled  to  credit  for  the  amount  of  the  "dog  tax"  collected  in 


1: 


196  CODE  OF  CIVIL  PROCEDURE. 

Buch  township  under  said  law,  notwithstanding  the  entire  county 
may  not  be  organized  into  civil  townships.  Liberty  Tp.  v..  Hutchinson  Co., 
S.  D 64  N.  W.  1117;  and  where  the  county  board  and  the  treas- 
urer refuse  to  allow  such  amount  to  be  credited  or  paid  over  to  the  township 
entitled  to  it,  and  resist  an  action  therefor  on  the  ground  only  that  the 
county,  and  not  the  township,  is  entitled  to  the  same,  judgment  for  the 
amount  so  collected  is  properly  rendered  in  favor  of  the  township  and 
against  the  county.  Id,  In  such  action  the  county  cannot  raise  the  ques- 
tion cf  the  constitutionality  of  the  act  authorizing  the  tax,  for,  having  col- 
lected the  money,  it  would  not  be  relieved  of  its  obligation  to  account  for  it 
because  the  law  under  which  it  was  collected  was  invalid.     Id. 

Ability  to  Pay  Debts— Presumption.  The  presumption,  in  absence 
of  anything  to  the  contrary,  is  that  men  are  able  and  willing  to  pay  in  due 
course  of  business  their  just  debts  at  maturity.  KelSey  v.  Welch  et  al,. . . . 
S.  D ,  66  N.  W.  390;  1  Rice  Ev.  68,  96. 

8.     Pleadings. 

(a).  Order  of  Arrest — Complaint.  To  authorize  an  order  of  arrest, 
the  plaintifif  must,  in  his  complaint  and  affidavit,  where  the  cause  of  arrest 
is  identical  with  the  cause  of  action,  state  facts  which  will,  prima  facie,  justify 
the  making  of  the  order;  complaint  and  order  in  this  case  examined,  and 

held,  insufficient  to  sustain  the  order  of  arrest.     Hart  v.  Grant, S.  D. 

....,  66  N.  W.  322;  McClure  v.  Levy  (Sup.),  22  N.  Y.  Supp.  1006;  Tupper 
V.  Morin,  (Sup.)  12  N.  Y.  Supp.  310.  Percolating  Water — Ownership 
— Complaint.  A  complaint  showing  plaintifif  the  owner  of  land  upon  which 
a  spring  formed  by  percolations  through  the  soil  or  coming  to  the  surface 
is  located,  and  that  defendant,  against  his  objection  and  protest,  wilfully 
and  habitually  took   large  quantities  of   water  from  such  spring,  states  a 

cause  of  action.     Fuller,  J.,  dissenting.     Metcalf  v.  Nelson, S.  D , 

66  N.  W.  911;  Bufifum  v.  Harris,  5  R.  I.  243;  Bliss  v.  Greeley,  45  N.  Y. 
671;  Clark  v.  Conroe,  38  Vt.  469;  5  Am.  &  Eng.  Ency.  Law,  p.  2  and 
cases  cited. 

(b).  Frivolous  Answer — Complaint  Alleging  Performance.  A 
written  contract  sued  upon  and  set  forth  in  the  complaint,  which  embraced 
certain  conditions  precedent  to  be  performed  by  plaintifif,  the  allegation  be- 
ing that  "the  said  plaintifif  has  fully  performed  all  the  conditions  of  said  instru- 
ment on  her  part;"  and  the  answer  embracing  a  general  denial;  the  district 
court  struck  out  the  answer,  on  motion,  as  frivolous.  Held,  the  answer 
raised  a  material  issue  of  fact  which  defendant  had  a  legal  right  to  have 
presented  to  a  jury  for  determination,  and  was  not  frivolous.  (Sigmund  v. 
Bank,  4  N.  D.  164,  59  N.  W.  966,  followed  and  applied.)     Sifton   v.   Sifton, 

....  N.  D ,65  N.  W.670;  Bliss  Code  PI.,   sec.   421;  Maxw.  Code  PL, 

555  and  note  2;  Perry  v.  Reynolds  (Minn.),  42  N.  W.  471.  Parties  Defen- 
dant—Mortgage  on-Decedent's.  Realty.     In  an  action  to  foreclose  a   mort- 


OF  APPEAT.S  IN  CIVIL  ACTIONS.  l^? 

gage  given  by  decedent  upon  realty,  the  heirs  of  such  decedent  are  proper 

parties  defendant.     Kelsey   v.    Welch  et  al,  S.  D ,  66  N.    W.  390; 

Mnxw.  Code  PL,  p.  66;  Carr  v.  Caldwell,  10  Cal.  380;  Comp.  Laws,  sec.  5860; 
Deer.  Ann.  Code,  p.  252,  c  8;  Harwood  v.  Marye,  8  Cal.  580;  Bliss  Code  PI., 
102;  Wiltsie,  Mott.  Force.  122.  Defense  and  Coimterclaim — Same  Facts. 
The  same  facts  may  constitute  a  defense  to  a  claim  by  plaintiff,  and  at  the 
same  time  entitle  a  defendant  to  an  affirmative  judgment  against  plaintiff  in 
excess  of  the  claim  made  by  plaintiff;  and  when  such  is  the  case  a  defend- 
ant may  plead  such  facts,  both  as  a  defense  and  as  a  counterclaim,  and  can- 
not be  compelled  to  elect  upon  which  he  will  rely.  Nollman  et  al  v.  Evanson, 
N.  D ,  65  N.  W.  686;  Neraetty  v.  Naylor,  63  How.  Pr.  387;  Dun- 
ham V.  Bower,  77  N.  Y.  76;  Mf'g  Co.  v.  Colgate,  12  Ohio  St.  344.  Contract 
For  Plastering' — Defenses.  Action  to  recover  on  a  contract  to  furnish  ma- 
terials and  labor  for  plastering  a  house,  plastering  to  be  of  a  certain  qual- 
ity; the  answer  set  up  that  the  plastering  was  not  according  to  contract, 
and  that  by  reason  of  inferior  materials  and  unskillful  workmanship  the 
plastering  was  worthless  and  of  no  benefit  to  defendant.  Held,  a  good  de- 
fense.    Nollman  et  al  v.  Evanson,   N.  D ,  65  N.  W.  686;  Moulton 

V.  McOwen,  103  Mass,  587;  Kelly  v.  Bradford,  33  Vt.  35;  White  v.  Oliver, 
36  Me.  92;  Pinches  v.  Lutheran  Church,  55  Conn.  183;  Hayward  v.  Leon- 
ard, 19  Am.  Dec.  268  and  note.  Evidence  examined,  and  held,  the  plaster- 
ing was  not  according  to  contract,  and  of  no  benefit  to  defendant.  Nollman 
et  al  v.  Evanson,  supra. 

4.     Practice — Procedure. 

(a).  Motion — Renewal  of — Res  Judicata.  After  a  motion  to  set 
aside  an  attachment  was  denied  before  one  district  judge,  the  same  motion 
was  made  before  another  judge  into  whose  district  the  case  came  by  change 
of  venue,  on  the  same  facts.  No  claim  of  surprise,  or  that  new  evidence  had 
been  discovered,  was  made,  nor  was  any  reason  assigned  for  renewal  of  first 
motion,  upon  denying  which  no  leave  to  renew  was  given.  Second  motion 
was  granted.  Held,  error;  that  one  judge  has  no  power  to  review,  on  same 
facts,  the  decision  of  another  judge  of  co-ordinate  jurisdiction.  Enderlin 
State  Bank  v.  Jennings,  4  N.  D.  228,  59  N.  W.  1058;  Dwight  v.  St.  John,  B5 
N.  Y.  203;  Grier  v.  Jones,  54  Ga.  154;  Weber  v.  Tschetter,  1  S.  D.  205, 46  N. 
W.  201;  Com'rs  v.  Mcintosh,  30  Kas.  234,  1  Pac.  572;  Mabry  v.  Henry,  83  N. 
C.  298;  Burner  v.  Hevener,  34  W.  Va.  774,  12  S.  E.  861;  Kabe  v.  The  Eagle, 
25  Wis.  108;  Cothren  v.  Connaughton,  24  Wi3.  134;  Austin  v.  Walker,  61 
Iowa  158,  16  N.  W.  655;  Prauenthal's  Appeal,  100  Pa.  St.  290;  Clagett  v. 
Simes,  25  N.  H.  402;  Spitley  v.  Frost,  15  Fed.  299;  Bank  v.  Hansee,  15  Abb. 
N.  S.  488;  1  Herm.  Est.  sec.  472;  Freem.  Judg.  sees.  325,  326;  2  Black,  Judg. 
sec.  691,  692.  Same — Rehearing,  in  Effect.  By  entertaining  the  second 
motion  under  such  circumstances,  a  rehearing  is  granted  in  legal  effect. 
Enderlin   State  Bank   v.  Jennings,   supra;  Harris  v.    Brown,  93  N.  Y.  390; 


198  CODE  OF  CIVIL  PROCEDURE. 

Kennoy  v.  Kelleher,  63  Cnl.  442;  Riggs  v.  Purcell,  74  N.  Y.  370.  Diligence. 
A  person  making  a  motion  must  bring  in  all  his  evidence,  or  all  he  might 
have  obtained  with  due  diligence;  he  cannot  be  allowed  to  supply  the  defic- 
iency and  renew  the  application,  Enderlin  State  Bank  v.  Jennings,  sapra; 
Preera.  Judg.  sec.  326;  Ford  v.  Doyle,  44  Cal.  635;  Ray  v.  Connor,  3  Edw. 
Ch.  478;  Lovel  v.  Martin,  12  Abb.  Pr.  178;  Pattison  v.  Bacon,  21  How,  Pr. 
478;  Allen  v,  Gibbs,  12  Wend,  202;  Fenton  v.  Bank,  Clarke,  Ch.  360;  Adams 
V.  Lockwood  (Kas,),  2  Pac,  626,  The  same  diligence  as  required  of  one  mov- 
ing for  new  trial  on  the  merits  of  a  case  ought  to  be  required  of  the  moving 
party  on  a  renewed  motion,  Enderlin  State  Bank  v,  Jennings,  supra;  Hill 
v.  Hoover,  9  Wis,  15;  Pierce  v.  Kneeland,  Id.  24;  Willett  v,  Fayerweather, 
1  Barb,  72;  Lovel  v,  Martin,  12  Abb.  Pr,  178;  Pattison  v.  Bacon,  21  How, 
Pr.  478;  Adams  v.  Lockwood,  30  Kas.  373,  2  Pac.  626;  Witmark  v.  Herman, 
44  N,  Y,  Super.  Ct.  144. 

(b).  Service  on  Corporation — "Managing  Agent,"  In  an  action 
against  a  private  corporation  the  return  of  the  sheriff  must  affirmatively 
show  service  made  upon  an  oflHcer  or  agent  specified  in  the  statute  as  one 
upon  whom  service  may  be  made.     Mars  et  al  v,  Oro  Fino  Min,  Co,  et  al, 

....S.  D ,65N,  W.  19;  Foster  v.  Lumber  Co.,  5  S.  D,  57, 58 N.  W,  9,   An 

attorney  in  fact,  authorized  by  a  private  corporation  to  apply  for  patent  to 
mining  ground  claimed  by  it  and  to  execute  such  papers  as  may  be  neces- 
sary for  that  purpose,  is  not  by  virtue  of  such  employment  a  "managing 
agent,"  v^ithin  the  meaning  of  that  term  in  sec,  4898,  Comp,  Laws.  Marset 
al  V.  Oro  Fino  Min,  Co.,  et  al,  supra.  Mining — Adverse  Claimant — Pro- 
cess. In  an  adverse  proceeding  under  sec,  2326,  Rev.  Stat,  U.  S,,  it  is  not 
sufficient  that  the  adverse  claimant  places  the  summons  in  the  hands  of  the 
sheriff  within  30  days  after  filing  of  the  adverse  claim,  unless  he  proceeds 
with  reasonable  diligence  to  secure  the  service  of  such  summons  upon  the 

defendant  in  the  action.     Mars  et  al  v.  Oro  Fino  Min,  Co  , S,  D , 

65  N,  W.  19.  Where  in  such  an  action  no  service  of  the  summons  was  made 
in  any  manner  upon  defendant  for  more  than  a  year  after  the  adverse  claim 
was  filed,  and  the  defendant  did  not  appear  in  the  action,  "proceedings," 
within  the  meaning  of  that  term  as  used  in  said  section,  were  not  com- 
menced in  time,  and  the  action  was  properly  dismissed.  Four  Hundred  and 
Twenty  Min,  Co,  v.  Bullion  Min,  Co.,  3  Sawy.  634;  Fed,  Cas,  No,  4989;  Id,, 
9  Nev.  240;  Chambers  v,  Harrington,  111  U.  S,  350,  4  Sup,  Ct,  428;  Matting- 
ly  v,  Lewisohn  (Mont,),  19  Pac,  310;  Cronin  v,  Min,  Co,  (Idaho),  32  Pac,  204; 
Golden  Fleece  G,  &  S.  M,  Co.  v.  Cable  Consolidated  G.  «&  S.  M.  Co.,  12  Nev. 
312. 

Claim  Against  Administrator — Presentation— Mortgage,  It  is  not 
necessary  to  present  to  an  administrator  a  claim  secured  by  mortgage  upon 
realty  of  a  decedent,  except  as  to  a  deficiency  existing  after  foreclosure  sale. 

Kelsey  v.  Welch  et  al   S.  D ,  66  N.  W.  390;  Comp.  Laws,   sec.   5790; 

Purden  v.  Archer,  4  S.  D.  54,  54  N.  W.  1043. 


OP  APPEALS  IN  CIVIL  ACTlOISfS.  190 

Municipal  Corporation — Enjoining  Nuisance.  A  municipal  corpora- 
tion, in  the  exercise  of  a  granted  power  to  "restrain,  prohibit,  or  suppress" 
a  public  nuisance,   may,  under   proper  circumstances,   invoke  the  aid  of  a 

court  of  equity.     Citj  of  Huron  v.  Bank  of  Volga, S.  D ,   66  N.    W, 

815;  1  Dill.  Mun.  Cor.,  (4th  Ed.)  sec.  379;  Wood  Nuis.  (2d  Ed.),  sec.  744;  3 
Pom.  Eq.  Jur.,  p.  380;  City  of  Denver  v.  Mullen,  7  Colo.  345,  3  Pac.  693;  Vil- 
lage of  Pine  City  v.  Munch,  42  Minn.  342,  44  N.  W.  197;  City  of  New  Orleans 
V.  Lambert,  14  La.  244;  City  of  Waterloo  v.  Union  Mill  Co.,  72  la.  437,  34  N. 
W.  197;  15  Am.  &  Eng.  Ency.  Law,  p.  1184. 

Parties— Tax— Shares  Bank  Stock.  The  shares  of  stock  of  an  incor- 
porated banking  association  being,  under  ch.  14,  Laws  1891,  assessed  against 
the  individual  owners  thereof,  and  the  tax  extended  thereon  being  against 
and  payable  by  such  individual  shareholders,  and  not  by  the  bank,  such  bank 
cannot,  in  its  own  name  and  for  itself,  maintain  an  action  to  restrain  the  col- 
lection of  such  tax  from  the  individual  stock  owners.     Northwestern  Loan 

&   Banking  Co.    v.  Muggli,   treas.,   S.  D ,  64  N.  W.  1122;  Bank  v, 

McKenna,    32    Minn.    468,    21    N.  W.   556,  (on    rehearing),    S.    D. 

,     65     N.     W.     442.     Such    action    cannot    be    maintained    by    the 

bank  on  the  ground  of  avoidance  of  a  multiplicity  of  suits,  upon  a 
complaint  which  does  not  show  facts  which  would  or  might  expose  the  bank 
to  such  suits.  Id.  Payment — Recovery  Back.  Where  defendant  had 
made  a  payment  under  a  contract  for  plastering,  before  he  knew  of  the  in- 
ferior and  worthless  quality  of  the   plastering,  he  was  entitled  to  recover 

back  the  amount  so  paid.     Nollman  et  al  v.  Evanson,    N.  D ,65 

N.  W.  686. 

(c).  Attachment — Action  On  Contract — Conveyance  of  B^alty.  An 
attachment  in  an  action  for  breach  of  contract  to  convey  realty,  that  has 
been  issued  upon  affidavit  which  fails  to  enumerate  any  of  the  acts  or  omis- 
sions constituting  actionable  detriment,  under  sec.  4586,  Comp.  Laws,  and 
which  states  no  ground  for  damages  ascertained  or  ascertainable  by  refer- 
ence to  the  contract,  or  from  which  the  court  can  definitely  determine,  by 
any  fixed  rule  of  law  or  measure  of  damages,  the  amount  which  plaintiff  is 
entitled  to  recover,  should  be  vacated  and  discharged  on   motion,    Kellam, 

J.,  dissenting.     Narregang  v.  Muscatine,  Mort.  &  Trust  Co.,   S.  D , 

64  N.  W.  1129;  Coats  v.  Arthur,  5  S.  D.  274,  58  N.  W.  675.  Attachment 
—Claim  Not  Due — Removal  of  Property.  It  is  only  when  the  action  is 
brought  on  a  claim  not  due  that  plaintiff  is  entitled  to  an  attachment,  on 
the  ground  that  his  debtor  is  about  to  remove  his  property  with  intent  "of 
hindering  and  delaying"  him  in  the  collection  of  his  debt.  Foley- Wads- 
worth  Implement  Co.   V.    Porteous,   S.  D ,   65  W.    W.  429;  Comp. 

Laws,  sec.  5014.  Attachment  Affidavit— Denial  of  Allegation.  When 
the  attachment  affidavit  shows  plaintiff's  claim  past  due,  and  alleges  that 
defendant  "has  sold,  conveyed,  and  disposed  of  his  property  with  a  fraudu- 


200  CODE  OF  CIVIL  PROCEDURE. 

lent  intent  to  cheat  and  defraud  his  creditors,"  which  allegation  is  denied 
by  defendant,  and  on  hearing  of  defendant's  motion  to  discharge,  is  not  sup- 
ported by  plaintiff's  evidence,  the  attachment  will  not  be  sustained,  because 
defendant  has  not  properly  denied  the  allegation  "that  defendant  is  about 
to  remove  his  property  with  intent  and  to  the  effect  of  hindering  and  delay- 
ing plaintiffs  in  the  collection  of  their  debts."  Foley-Wadsworth  Imple- 
ment Co  V.  Porteous,  . . . .  S.  D ,  65  N.  W.  429;  Crow  v.   Beardsley, 

68  Mo.  439.  Affidavits  Before  Referee — Practice.  It  is  not  error  to  deny 
an  application  for  an  order  based  upon  subd.  5,  sec.  5324,  Comp.  Laws,  com- 
pelling persons  to  attend  before  a  referee  appointed  for  that  purpose,  and 
make  affidavits  to  be  used  in  resisting  a  motion  to  discharge  an  attachment, 
where  it  neither  appears  that  such  persons  have  refused  to  make  affidavits, 
nor  that  they  possess  any  knowledge  of  material   facts.     Perie  et  al  v.  Berg 

et  al,  . . . .  S.  D ,  64  N.  W.  1130;  Fisk  v.  Ry.  Co.,  3  Abb.  Prac.  (N.  S.), 

430.  Vacation  of  Attachment — Showing — Further  Time.  The  facts  set 
out  in  the  affidavit  for  an  attachment  being  practically  unsupported,  and 
specifically  denied  by  the  attachment  debtor,  the  proof  before  the  court  was 
sufficient  to  justify  an  order  vacating  the  attachment.  Perie  et  al  v.  Berg 
et  al, S.  D ,  64  N.  W.  1130.  The  refusal  of  the  court  to  grant  ap- 
pellants further  time  in  which  to  procure  affidavits  in  support  of  the  attach- 
ment, though  not  in  harmony  with  the  usual  and  better  practice,  is  field, 
under  the  circumstances  of  this  case,  not  sufficient  to  require  a  reversal.  Id. 
Sec.  5325,  Comp.  Laws,  as  amended  by  chap.  70,  laws  1893,  authorizes  a 
court  or  judge  to  prescribe,  by  order  to  show  cause,  a  sho^ter  time  than  six 
days  between  notice  and  hearing  of  motion  to  vacate  an  attachment.  Perie 

et  al  V.  Berg  et  al,  . . . ,  S.   D ,  64  N.  W.  1130;  Wyman  v.  Wilmarth,  1 

S.  D.  172,  46  N.  W.  190. 

Order  of  Arrest— Affidavit— Information  and  Belief.  An  affidavit 
for  an  order  of  arrest  must  either  be  positive,  or  upon  information  and  be- 
lief; and  where  a  material  part  thereof  is  made  upon  information  and  belief, 
the  facts  upon  which  the  information  and  belief  are  founded  must  be  stated. 
Hart  V.  Grant,  . . . .  S.  D ,  66  N.  W.  322;  Comp.  Laws,  sec.  4947;  Fin- 
lay  v.  Castroverde,  22  N.  Y.  Supp.  716,  68  Hun  59;  Sheridan  v.  Briggs, 
(Mich.),  19  N.  W.  189.  An  affidavit  which  asserts  that  the  facts  are  stated 
upon  personal  knowledge  of  affiant,  but  which  from  the  facts  detailed  must 
necessarily  have  been  stated  upon  information  and  belief,  and  the  grounds 
of  such  information  and  belief  are  not  given,  is  insufficient  to  support  an  or- 
der of  arrest.     Hart  v.  Grant,  supra. 

Answer  After  Time— Affidavit— Proposed  Answer.  Where,  on  ap- 
plication for  leave  to  serve  an  answer  after  the  statutory  time  has  expired, 
the  party  moving  is  required  by  the  rules  of  the  court  in  which  the  motion 
is  made  to  serve  with  his  notice  of  motion  an  affidavit  of  merits  and  a  copy 
of  his  proposed  answer,  if  he  fails  to  serve  either  the  motion  is  properly 
denied.  Searlesv.  Lawrence  et  al,   S.  D ,  65  N.W.  34. 


OF  APPEALS  IN  CIVIL  ACTIONS.  201 

Instructions— Changing  Language  of— Error.  At  the  conclusion  of 
the  evidence,  certain  specific  instructions,  consistent  with  the  theory  of  the 
defense,  were  prepared  and  placed  before  the  court,  with  request  that  the 
same  be  submitted  to  the  jury.  Without  writing  on  the  margin  thereof  the 
word  "Given"  or  "Refused,"  as  required  by  sec.  5048,  Comp.  Laws,  the 
court,  without  consent  of  counsel,  materially  changed  the  language  and  im- 
port of  each,  and  gave  the  same  to  the  jury  as  coming  from  defendant  with 
a  request  that  the  jury  be  thus  instructed.     Held,  reversible  error.     Peart 

V.  Chi.,  M.  &  St.  P.  Ry.  Co S.   D ,  66  N.    W.  814;  Galloway  v. 

McLean,  2  Dak.  372,  9  N.  W.  98. 

[Author's  N6te:  The  Peart  case,  supra,  properly  belongs  in  the 
chapter  on  New  Trials,  but  was  decided  too  late  for  insertion  in  that  part  of 
this  book.] 

Default  Judgment — Notice  of  Application.  Where  a  party  applies 
for  judgment  under  first  clause  of  subd.  1,  sec.  5025,  Comp.  Laws,  and  the 
action  is  one  arising  on  contract  for  recovery  of  money  only,  and  the  com- 
plaint is  duly  sworn  to  and  proof  of  service  duly  made,  and  no  answer  has 
been  received,  the  defendant  who  has  not  answered,  but  has  appeared,  is 
not  entitled  to  notice  of  such  application.     Searles  v.  Lawrence  et  al,  ....  S. 

D 65  N.  W.  34;  Dix  v.  Palmer,  5  How.  Pr.  233;  South  worth  v.  Curtis, 

6  How.  Pr.  271;  Wait's  Code,  sec.  246,  note  g. 

Vacation  of  Judgment— Process— ^Affidavits.  A  judgment  was  tak- 
en by  default  against  two  defendants,  one  of  whom  only  was  served  with 
process,  although  the  sheriff's  return  showed  both  served.  Defendants 
joined  in  a  motion  to  vacate  the  judgment,  and  asked  on  the  face  of  the  mo- 
tion papers  to  come  in  and  defend  on  the  merits.  The  motion  was  based  in 
part  upon  affidavits  setting  out  non-service  upon  one  of  defendants,  those 
affidavits  not  being  controverted;  another  affidavit  setting  out  the  facts  con- 
stituting the  defenses,  which  affidavit  was  met  with  one  on  plaintiff's  be- 
half, in  which  all  the  material  averments  in  defendant's  affidavit  were  met 
and  denied.  A  motion  to  vacate  was  denied.  Held,  error  as  to  the  defendant 
not  served  with  process.  Held,  further,  that  as  to  the  other  co-defen- 
dant,   the    order    denying    the  motion     should    be  affirmed    for    reasons 

stated   in   the    opinion.     Stewart   v.   Parson,    N.    D ,   65  N.    W. 

672;  Godfrey  v.  Valentine,  39  Minn.  336,  40  N.  W.  163.  Judgment  By  De- 
fault— Relief  From.  Applying  the  rule  enunciated  in  Oil  Co.  v,  Lee,  1  S. 
D.  531,  47  N.  W.  955,  to  the  facts  disclosed  by  the  record  in  this  case,  in- 
volving an  oi'der  denying  an  application  to  set  aside  a  judgment,  which  or- 
der is  appealed  from,  it  is  held,  that  appellant  should  be  relieved  from  a 

judgment  by  default.     Haney,  J.,  dissenting.     Turner  v.  Coughran,    S. 

D ,  66  N.  W.  810. 

Execution  Against  Person — Causes  of  Action — Conversion.  An  ex- 
ecution against  the  person  will  not  ordinarily  issue  upon  a  judgment  in  an 


202  CODE  OF  CIVIL  PROCEDURE. 


action  in  which  several  causes  of  action  are  combined,  if  either  cause  is  one 
that  would  not  allow  a  judgment  upon  which  execution  against  the  person 
might  issue;  but  the  rule  is  not  applicable  where  the  verdict  upon  which 
the  judgment  is  rendered  establishes  to  a  certainty  that  they  found  against 
defeudant  only  upon  a  cause  of  action  which  would  support  a  judgment  upon 
which  such  an  execution  might  issue;  an  execution  against  the  person  may 
issue  upon  a  judgment  for  wrongful  conversion  of  personal  property.  Her- 
man v,  Sherin,  ....  S.  D ,  65  N.  W.  434;  Winton  v.  Knott,    . . . .  S.  D. 

,  63  N.  W.  783;  Wesson  v.   Chamberlain,   3   N.    Y.    331;  Richmeyer  v. 

Remsen,  38  N.  Y.  206;  Lembke's  Case,  11  Abb.  Prac.  (N.  S.),  72.  Execu- 
tion Without  Order.  And  in  a  case  of  wrongful  conversion  of  personal 
property,  execution  may  be  issued  against  the  person  as  in  other  cases, 
without  an  order  of  the  court  or  judge.  Hermann  v.  Sherin,  supra;  Gino- 
chio  V.  Figari,  4  E.  D.  Smith  227;  Alden  v.  Sarson,  4  Abb.  Prac.  102; 
Kloppenburg  v.  Neefus,  4  Sandf.  655;  Lockwood  v.  VanSlyke,  18  How. 
Pr.  45. 

5.     Contracts. 

Control  of  Corporate  Stock— Contract — Public  Policy.  Equity  will 
not  specifically  enforce  a  contract  to  give  a  minority  stockholder  the  right 
to  control  stock  of  another  and  vote  it  at  a  stockholder's  meeting,  where  the 
sole  purpose  is  to  secure  control  of  the  corporation  by  the  use  of  such  stock. 

Gage  v.  Fisher,  . . . .  N.  D ,  65  N.  W.  809;  Foil's  Appeal,  91  Pa.  St.  434. 

Therefore,  when  such  a  contract  hasbeen  made,  on  the  strength  of  which 
the  promisee  has  lost  control  of  stock  sufficient  to  give  him  control  of  the 
corporation,  and  thereafter  the  promisor  threatens  to  sell  his  stock  to  the 
opposing  faction,  thus  giving  them  control  of  the  corporation,  and  the  prom- 
isee, to  save  himself  from  defeat  in  his  project  to  secure  its  control,  pur- 
chases such  stock  at  a  figure  much  in  excess  of  its  market  value,  such  con- 
t»*act  of  purchase  cannot  thereafter  be  rescinded,  but  the  purchaser  must 
pay  a  stipulated  price.  Gage  v.  Fisher,  supra.-  A  contract  to  allow  another 
to  control  the  voting  of  stock,  based  upon  a  promise  of  the  one  who  is  to  con- 
trol such  stock  to  secure  for  its  owner  an  office  in  the  corporation,  is  illegal; 
and  the  whole  contract  is  void,  although  the  illegal  consideration  (i.  e.,  the 
promise  to  secure  for  the  owner  of  the  stock  a  corporate  office)  constitutes 
only  a  part  of  the  consideration  for  the  agreement  to  give  such  promisee 
control  of  the  stock.  Gage  v.  Fisher,  supra;  Greenh.  Pub.  Pol.,  p.  17,  rule 
21,  p.  24,  rule  25,  and  cases  cited;  2  Add.  Cont.,  pt.  2,  bottom  paging,  762 
and  cases  in  note  1;  Tobey  v.  Robinson,  99  III.  222;  Comp.  Laws,  sec.  3533. 
Agreement  to  Pay — Indemnity— Condition  Precedent.  There  being  a 
well  settled  distinction  between  an  agreement  to  indemnify  and  one  to  pay, 
an  action  upon  a  breach  of  covenant  to  pay  to  a  third  party  a  stipulated  amount 
at  a  specified  time,  and  to  cause  certain  realty  to  be  released  from  a  mort- 
gage given  by  plaintiff  to  secure  payment  thereof,  is  maintainable  by  the 


OF  APPEALS  IN  CIVIL  ACTIONS.  203 


promisee  against  promisor,  although  the  former  has  neither  paid  the  money 
nor  sustained  actual  injury  by  reason  of  failure  of  the  former  to  perform  his 

contract.     Callender  v.  Edmison  et  al, S.  D ,  65  N.  W.  425;  Merri- 

am  V.  Lum.  Co.,  23  Minn.  314;  Locke  v.  Homer,  131  Mass.  93;  Dorrington  v. 
Minnick  (Neb.)  19  N.  W.  456;  Wilson  v.  Stilwell,  9  Ohio  St.  468;  Sage  v. 
Truslow,  88  N.  Y.  240;  Stout  v.  Folger,  34  la.  71;  Rector  v.  Higgins,  48  N. 
Y.  532;  Wicker  v.  Hoppock,  6  Wall.  94;  Port  v.  Jackson,  17  Johns.  39.  Ap- 
plication of  Payments— Account — Note.  One  who  owed  a  firm  on  ac- 
count, and  another  sum  on  his  past-due,  unsecured  note,  having  paid  an 
amount  equal  to  the  amount  owing  on  account  without  manifesting  any  de- 
sire as  to  the  application  of  payment,  held,  in  an  action  on  a  note,  that  the 
creditors  had  the  right  to  use  the  money  to  extinguish  the  account.      Fargo 

et  al   V.  Jennings, S.  D ,  65  N.   W.  433;  Whiting  v.  Eichelberger, 

16  la.  4-22;  Bank  v.  Roberts,  2  N.  D.  195,  49  N.  W.  722;  Munson  v.  Pummer, 
(la.)  7  N.  W.  95;  Shortridge  v.  Pardee,  2  Mo.  App.  363;  18  Am.  &  Eng. 
Ency.  Law,  p.  237.  Realty  Sale — Landlord  and  Tenant — Crop  Lien.  Un- 
der an  executory  contract  of  sale  of  land,  where  the  purchaser  was  let  into 
possession,  with  full  use  of  the  premises,  but  bound  to  pay  a  stipulated  price 
therefor,  and  to  pay  each  year  "so  much  as  the  one-half  of  all  crops  on  such 
land  shall  amount  to,"  held,  that  no  relation  of  landlord  and  tenant  could 
arise  under  such  contract,  nor  would  the  parties  be  tenants  in  common  of 
the  crops  grown  on  such  land  by  the  vendee,  unless  the  contract  created 
such  relationship  by  express  language  or  necessary   implication.     Moen  v. 

Lillestal   et  al,  . . . .  N.  D ,  65  N.  W.  694;  12  Am.  &  Eng.  Ency.  Law,  p. 

662;  Stone  v.  Sprague,  20  Barb.  509;  Thompson  v.  Bower,  60  Barb.  463; 
Newby  v.  Vestal,  6  Ind.  412;  Fall  v.  Hazelrigg,  45  Ind.  576;  Cole  v.  Gill,  14 
la.  527;  Dakin  v.  Allen,  8  Cush.  33;  Hill  v.  Hill,  43  Pa.  St.  528;  Stauffer  v. 
Eaton,  13  Ohio  322;  Klopfer  v.  Keller,  1  Colo.  410;  Willis  v.  Wozengraft,  22 
Cal.  607.  Contract  examined,  and  lield,  not  to  constitute  a  transfer  to  the 
vendor,  or  a  reservation  in  him  of  any  title  or  ownership  in  or  lien  upon  the 
crops  to  be  grown  upon  the  land  by  vendee.  Moen  v.  Lillestal  et  al,  supra. 
Statute  of  Frauds — Sale  of  Land — Agency.  The  facts  and  circumstances 
disclosed  by  correspondence  between  appellant  and  his  purported  agent  ex- 
amined, and  held,  sufficient  to  authorize  a  contract  for  sale  of  land,  and  to 
sustain  a  decree  which  binds  the  former  to  execute  and  deliver  to  respond- 
ent a  deed  upon  payment  of  purchase  price  according  to  terms  of  eaid  con- 
tract.    Farrell  v.  Edwards,  . . . .  S.  D ,  66  N.  W.  812;  Lyon  v.  Pollock, 

99  U.  S.  668;  Jackson  v.  Badger,  35  Minn.  52,  26  N.  W.  908;  Peabody  v. 
Hoard,  46  III.  243;  Vanada  v.  Hopkins,  19  Am.  Dec.  92;  Lee  v.  Cherry,  85 
Tenn.,  707,  4  S.  W.  835;  Minor  v.  Willoughby,  3  Minn.  225  (Gil.  154);  Ballou 
V.  Sherwood  (Neb.),  49  N.  W.  790;  Mann  v.  Higgins,  83  Cal.  66,  23  Pac.  206; 
Kennedy  v.  Gramling,  33  S.  C.  367,  US.  E.  1081.  Loan  by  Mistake— Re- 
vivor of  Mortgage— Insolvent  Guardian.     One  who  through  mistake  of 


204  CODE  OF  CIVIL  PROCEDURE. 

law  loans  money  with  which  a  mortgage  executed  by  a  person  since  de- 
ceased, upon  his  realty,  is  paid,  and  who  takes  therefor  the  note  of  the  guar- 
dian of  the  minor  heirs  of  such  decedent,  the  guardian  being  owner  of  one- 
third  interest  in  the  premises,  and  by  whom  a  mortgage  thereon  is  executed 
to  secure  said  note,  is  not  entitled  to  a  decree  reviving  and  foreclosing  the 
former  mortgage,  unless  it  appears  from  the  complaint  and  evidence  that 
said  guardian  is  insolvent,  or  that  his  mortgaged  interest  in  the  land  is  insuffi- 
cient to  secure  payment  of  the  note  when  due.     Kelsey   v.  Welch  et  al, 

S.  D  ....,66N.  W.  390. 

APPEAL— HOW  TAKEN— SERVICE  OF  NOTICE  OF.  §  5215  Comp. 
Laws;  §  5606  Rev.  Codes  N.  D.  An  appeal  must  be  taken  by 
serving  a  notice  in  writing,  signed  by  the  appellant  or  his 
attorney,  on  the  adverse  party,  and  on  the  clerk  of  the  court  in 
which  the  judgment  or  order  appealed  from  is  entered,  stating 
the  appeal  from  the  same,  and  whether  the  appeal  is  from  the 
whole  or  a  part  thereof,  and  if  from  a  part  only,  specifying  the 
part  appealed  from.  The  appeal  shall  be  deemed  taken  by  the 
service  of  the  notice  of  the  appeal,  aud  perfected  on  service  of 
the  undertaking  for  costs,  or  the  deposit  of  money  instead,  or 
the  waiver  thereof,  as  hereinafter  prescribed.  When  the  ser- 
vice of  a  notice  of  appeal  and  undertaking  cannot  in  any  case 
be  made  within  this  state,  the  court  may  prescribe  a  mode  for 
serving  the  same.     (Sec.  3,  chap.  20,  Laws  1887,  Dak.) 

[Sec.  6606,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  in  lieu  of  the 
language  "and  on  the  clerk,"  the  words  "and  filing  the  same  in  the  office  of 
the  clerk"  are  used,  and  in  lieu  of  the  words  "by  the  service  of  the  notice  of 
the  appeal,"  the  words  "by  the  service  of  a  notice  of  the  appeal"  are  used. 
(Sec.  3,  chap.  20,  Laws  1887,  am'd  sec.  4,  chap.  120,  Laws  1891,  N.  D.,  am'd 
Rev.  Com'rs.)] 

Rev.  Stat.  Wis.  1878;  sec.  3049;  sees.  407,  423,  C.  C.  P.;  Levisee,  pp.  119, 
125;  Wait's  Cqde.  sec.  327;  Harst  Pr.  Deer.  Code,  sec.  940. 

Consult  the  next  three  sections,  and  Rule  4,  Sup..  Ct.,  S.  D.  and  N.  D., 
Rule  5^7,  S.  D.,  Rule  32,  N.  D.     Post. 

Service  of  Notice  Jurisdictional— Waiver  Ineffectual.  Service  of  no- 
tice of  appeal  is  jurisdictional,  and  the  question  can  be  taken  advantage  of 
at  any  time  before  an  act  of  submission  to  the  appellate  court;  and  a  waiver 
by  stipulation  of  parties  is  insufficient.  In  re  Opening  of  Gold  Street,  Dead- 
wood,  Newton,  appellant,  2  Dak.  39,  3  N.  W.  311,  8  N.  W.  139;  People  v. 
Eldridge,  7  How.  Pr.  247;  Hastings  v.  Halleck,  10  Cal.  31,  149;  Buflfandeau 
V.  Edmundson,  24  Cal.  94;  Whipple  v.  Mills,  9  Cal.  641;  Kelsey  v.  Forsyth, 
21  How.  85;  Bonds  v.  Hickman.  29  Cal.  461."    Service  of  Appeal  Notice  on 


OF  APPEALS  IN  CIVIL  ACTIONS,  205 

Clerk  Jurisdictional.  Service  of  notice  of  appeal  upon  clerk  of  court  below 
is  jurisdictional,  and  where  the  record  fails  to  show  such  service  this  court 
will  not  hear  the  case.  Hoffman  v.  Bank  of  Minot  (three  cases),  4  N.  D.  473, 
61  N.  W.  1031;  Hoffman  v.  Mortgage,  Bank  &  In  v.  Co.  Td.,  1032.  Notice 
Simply  Filed,  InsuflBLcient.  Where  the  statute  provides  that  "an  appeal 
must  be  made  by  the  service  of  a  notice  in  writing  on  the  adverse  party  or 
his  attorney,  and  on  the  clerk  with  whom  the  judgment  or  oi'der  appealed 
from  is  entered,''  etc.,  a  notice  of  appeal  simply  filed  in  the  clerk's  office  is 
insufficient.     Peck  v.  Phillips,  4  Dak.  430,  34  N.  W.  65. 

Must  Bring  Bill  or  Statement,  When — Loose  Practice — The  Code. 
An  appeal  from  a  judgment  brings  only  the  judgment  roll  proper  into  this 
court  for  review;  and  where  no  bill  of  exceptions  or  case  is  settled  and  made 
part  of  the  judgment  roll,  so  as  to  present  a  case  in  the  record  here  for  re- 
view, it  cannot  be  considered.  The  preparation  and  presentation  of  this 
case  for  consideration  here,  is  in  defiance  of  the  rules  of  court  and  published 
decisions,  and  cannot  be  too  seriously  criticised.  "This  court  has  been  sub- 
ject too  and  governed  by  a  Code  of  Civil  Procedure  from  the  organization  of 
the  territory — a  period  of  almost  a  quarter  of  a  century;  and  since  1887 — a 
period  cf  almost  twenty  years — by  the  same  Code  of  Procedure  it  now  has, 
with  slight  changes  only  as  to  the  practice  on  appeal.  And,  whenever 
changes  have  been  made,  the  statutes  of  other  states  have  been  adopted  in 
hec  verba,  so  that  the  decisions  of  such  state  would  guide  the  practitioner  in 
the  doubtful  construction  of  such  amendments."  Fargo  et  al  v.  Palmer,  4 
Dak.  232,  29  N.  W.  463;  Gress  v.  Evans,  1  Dak.  387,  46  N.  W.  1132;  In  re 
Opening  Gold  Street,  Deadwood  v.  Newton,  2  Dak.  151,  3  N.  W.  329;  French 
V.  Lancaster,  2  Dak.  276,  9  N.  W.  716;  Golden  Terra  Min.  Co.  v.  Smith,  2 
Dak.  377,  11  N.  W.  98;  St.  Croix  Lumber  Co.  v.  Pennington,  2  Dak.  467,  11 
N.  W.  497. 

Jurisdiction  Must  Appear.  Appellate  jurisdiction  of  this  court  will 
not  be  presumed,  but  must  affirmatively  appear  of  record.  Valley  Land  & 
Irrigation  Co.  v.  Schone  et  al,  2  S.  D.  344,  50  N.  W.  356;  Peck  v.  Phillips,  4 
Dak.  430,  34  N.  W.  65;  Moore  v.  Vanderberg,  90  N.  C.  10;  Plummer  v.  Bank, 
(Iowa)  33  N.  W.  150;  Redhead  v.  Baker,  80  Iowa  162,  45  N.  W.  733;  State  v. 
Brooks  (Iowa),  50  N.  W.  43;  Noyes  v.  Lane,  2  S.  D.  55,  48  N.  W.  322.  The 
statute  (sec.  5215,  Comp.  Laws),  prescribes  the  way  by  which  a  case  may  be 
transferred  for  review  from  the  trial  court  to  the  supreme  court,  and  the 
jurisdiction  of  the  latter  court  depends  upon  compliance  with  its  provisions. 
It  is  just  as  essential  that  the  notice  of  appeal  be  served  upon  the  clerk  as 
upon  the  adverse  party,  and  filing  such  notice  in  the  clerk's  office  does  not 
constitute  such  service  upon  the  clerk.  Valley  Land  &  Irrigation  Co.  v. 
Schone  et  al,  2  S.  D.  344,  50  N.  W.  356.  Abstract  Must  Show  Appeal. 
Where  the  abstract  does  not  show  an  appeal  taken,  this  court  will  not  as- 
sume jurisdiction,  but  will  dismiss  the  appeal.  First  Nat'l  Bank  v.  North- 
western Elevator  Co.,  2  S.  D.  356,  50  N.  W.  356. 


206  CODE  OF  CIVIL  PROCEDURE. 

Omitting'  Party's  Name,  When  Immaterial— Appearance— Admis- 
sion. The  mere  fiict  that  the  name  of  one  of  the  defendants  is  omitted  in 
the  notice  of  appeal,  is  not  good  ground  for  dismissing  the  appeal;  the  no- 
tice intelligently  referring  to  the  judgment  appealed  from,  so  that  respond- 
ents are  informed  from  what,  and  for  what,  the  appeal  is  taken,  and  no  mis- 
take can  be  made  as  to  appellant's  intent.  Marshall  et  al  v.  Harney  Peak 
Tin  Mining,  Milling  &  Mf'g  Co.  et  al,  1  S.  D.  350,  47  N.  W.  290.  It  also  ap- 
pears that  respondents  have  appeared  in  this  tribunal  and  submitted  to  con- 
tinuances by  stipulation  signed  by  their  attorneys,  and  to  other  proceedings, 
and  by  filing  briefiS.  While  service  of  notice  of  appeal  is  a  jurisdictional 
question,  j'et  these  acts  of  submission  to  this  court  must  be  considered  as  ap- 
pearance sufficient  to  give  this  court  jurisdiction  of  the  appeal.  But  parties 
and  counsel  should  be  more  careful  in  drafting  and  serving  jurisditional  pa- 
pers. Id.  F.,  one  of  defendants,  appeared  in  court  by  attorney,  and  an- 
swered jointly  with  another  defendant,  through  the  same  attorney.  Judg- 
ment was  in  favor  of  both  defendants.  Notice  of  appeal  and  an  undertaking 
was  served  on  the  attorney  of  record  of  defendants,  from  the  title  in  which 
papers  F.'s  name  was  omitted,  but  in  each  the  judgment  appealed  from  is 
referred  to  as  one  recovered  by  "respondents"  against  appellants;  which 
service  is  admitted  without  objection  by  respondents'  attorney.  Held,  the 
appeal  is  properly  taken,  bringing  both  defendants  within  the  jurisdiction 
of  this  court.  Marshall  et  al  v.  Harney  Peak  Tin  Mining,  Milling  &  Mf'g 
Co.  et  al,  3  S.  D.  473,  54  N.  W.  272. 

Undertaking— Service  on  Party,  and  Filing.  On  an  appeal  to  this 
court,  service  of  the  undertaking  on  appeal  on  the  opposite  party,  and  filing 
it  with  clerk  of  trial  court,  is  sufficient.  Tolerton  &  Stetson  Co.  v.  Casper- 
son,  S.  D ,63   N.  W.  908.     Notice  of  appeal   having  been  served 

upon  respondent's  attorney  and  the  clerk,  the  service  of  the  appeal  under- 
taking upon  respondent  in  person,  and  filing  it  with  the  clerk,  is  sufficient. 
McKittrick  v.  Pardee,  . . . .  S.  D ,  65  N.  W.  23. 

Appeal  Pending  Former  Appeal,  Nugatory.  An  appeal  perfected 
to  this  court  brings  here  the  subject-matter  of  the  appeal,  as  to  the  party 
appealing;  and  a  subsequent  appeal  by   him  while  such  former  appeal  is 

pending,  is  nugatory.     State  ex  rel  Gunderson  v.  King  et  al, S.  D , 

60  N.  W.  75;  Hill  v.  Finnigan,  54  Cal.  311. 

TIME  ALLOWED  FOR  APPEAL  §  5216  Comp.  Laws.  The 
appeal  to  the  supreme  court  must  be  taken  within  sixty  days 
after  written  notice  of  the  order  shall  have  been  given  to  the 
party  appealing;  every  other  appeal  allowed  must  be  taken 
within  two  years  after  the  judgment  shall  be  perfected,  by  fil- 
ing the  judgment  roll. 


OF  APPEALS  IN  CIVIL  ACTIONS.  207 

SAME— TIME  AFTER  CASE  SETTLED.  §  5605  Rev.  Codes  N.  D. 
An  appeal  from  a  judgment  may  be  taken  within  one  year  after 
the  entry  thereof  by  default,  or  after  written  notice  of  the  entry 
thereof  in  case  the  party  against  whom  it  is  entered  has 
appeared  in  the  action,  and  from  an  order  within  sixty  after 
written  notice  of  the  same  shajl  have  been  given  to  the  party 
appealing;  provided,  that  in  all  actions  heretofore  or  hereafter 
tried,  when  the  appeal  from  an  order  is  based  upon  errors 
assigned  or  set  out  in  a  statement  of  the  case  submitted  to  the 
court  or  judge  thereof  for  settlement  within  sixty  days  after 
the  service  of  such  written  notice  and  at  least  eight  days  prior 
to  the  expiration  of  such  time  and  such  court  or  judge  neglects 
to  settle  such  statement  within  the  said  sixty  days,  the  party 
appealing  shall  have  thirty  days  after  such  statement  shall 
have  been  settled  in  which  to  take  an  appeal.  (Sec.  3,  chap. 
120,  Laws  1891,  N.  D.,  am'd  sec.  1,  chap.  81,  Laws  1893,  am'd 
Rev.  Com'rs. ) 

Sec.  413,  22,  C.  C.  P.;  Wait's  Code,  sec.  331;  Harst  Pr.  Deer.  Code  §  939. 

Consult  the  preceding  and  the  next  section;  Rule  4,  Sup.  Ct. 

(a).     Appealable  Orders. 

Violation  of  City  Ordinance — Appeal  Proper.  In  an  action  for  viola- 
tion of  a  municipal  ordinance,  where  defendant  was  acquitted,  and  the  city 
appealed,  respondent  moved  in  this  court  to  dismiss  the  appeal  upon  the 
ground  that  the  case  should  have  been  brought  here  by  writ  of  error,  and 
not  by  appeal.  Held,  that  an  appeal  was  the  proper  procedure,  the  act 
charged   not  being  punishable  by   imprisonment.     City  of  Sioux  Falls  v. 

Kirby, S.  D ,  60  N.  W.  156  (following  City  of  Huron  v.  Carter,  5  S. 

D.  4,  57  N.  W.  947).  Revoking  Attorney's  License— This  Section  Applies. 
A  judgment  under  sec.  477,  Comp.  Laws,  revoking  the  license  of  an  attor- 
ney, is  appealable  under  the  general  statute,  and  the  two  year  limit  applies. 
It  does  not  matter  whether  the  proceeding  should  be  regai'ded  as  civil  or 
criminal  in  its  nature.  Whenever  an  appeal  is  allowed  to  the  supreme 
court  from  a  judgment  of  a  district  (now  circuit)  court,  and  no  other  or  dif- 
ferent time  is  named  within  which  it  may  be  taken,  sec.  5216,  Comp.  Laws, 
must  control.     In  re  Houghton,  5  S.  D.  537,  59  N.  W.  733. 

Order  Dismissing  Appeal  From  Justice— "Judgment."  An  order 
of  the  district  (now  circuit)  court,  dismissing  an  appeal  from  a  justice  court 
to  the  district  court,  becalise  the  judgment  in  justice  court  was  not  appeal- 
able, and  awarding  costs  against  appellant,  is  a  judgment  within  the  mean- 
ing of  sec,  5216,  Comp.  Laws,  and  a  final  determination  of  the  rights  of  the 


208  CODE  OF  CIVIL  PROCEDURE. 

parties,  so  far  as  the  district  court  is  concerned,  and  an  appeal  may  be  tak- 
en therefrom  to  the  supreme  court  after  the  expiration  of  the  60  days  with- 
in which,  under  that  section,  appeals  from  orders  are  to  be  taken.  Mouser 
etal,  V.  Palmer,  2  S.  D.  466,  50  N.  W.  967;  Zoller  v.  McDonald,  23  Cal. 
136;  Bowie  v.  Kansas  City,  51  Mo.  459;  Black  on  Judgm.  sec.  27.  Order 
Discharging,  etc.,  Attachment,  Before  Judgment.  An  appeal  may  be 
tJiken  from  an  order  discharging,  continuing,  refusing,  or  modifying  an  at- 
tachment, before  judgment  upon  the  main  issues  in  the  original  cause  of 
action.  Quebec  Bank  v.  Carroll  et  al,  1  S.  D.  1,  44  N.  W.  723.  Order  Re- 
fusing to  Vacate  Judge's  Order  on  Habeas  Corpus.  In  an  appeal  from  a 
circuit  court  order  refusing  to  vacate  a  previous  order  of  the  judge  discharging 
respondent  from  custody  on  habeas  corpus,  respondent  contended  that  the 
first  or  original  oider  discharging  respondent  was  a  court  order,  from  which 
the  appeal  should  have  been  taken  and  that  more  than  60  days  having  elapsed, 
the  appeal  to  this  court  cannot  be  used  for  a  review  of  that  order.     Held, 

that  it  may  be  so  used.     Winton  v.  Knott,  sheriff,   S.  D.  ...'.,  63  N.  W. 

783;  sec.  7839,  Comp.  Laws. 

(b.)    Non-Appealable  Orders. 

Mandamus  Order  Refusing  to  Vacate  Writ.  In  a  mandamus  pro- 
ceeding, iesue  being  joined  on  a  demurrer  to  the  answer,  demurrer  was  sus- 
tained and  answer  dismissed  by  the  district  court.  Without  an  order  ad- 
judging that  the  peremptory  writ  of  mandamus  should  issue,  it  did  issue  and 
was  served  on  defendant,  exception  being  taken,  the  writ  being  styled  in  the 
exception  an  "order."  No  appeal  was  taken  from  the  order  sustaining  the 
demurrer  or  from  the  peremptory  writ,  but  after  time  for  appeal  had  ex- 
pired, motion  was  made  to  vacate  such  writ,  and  the  district  court  by  order  re- 
fused to  vacate  it;  and  defendant  attempted  to  appeal  from  the  last  men- 
tioned order  to  this  court,  under  subd.  5,  sec.  24,  chap.  120,  Laws  1891.  Held, 
the  appeal  will  not  lie;  following  Travelers'  Ins.  Co.  v.  California  Ins.  Co., 
1  N.  D.  151,  50  N.  W.  706;  Travelers'  Ins.  Co.  v.  Mayer,  2  N.  D. 
234,  50  N.  W.  706.  Order  Refusing  to  Vacate  Order  Dismissing 
Appeal  from  J.  P.  No  appeal  to  this  court  having  been  taken  from  an  or- 
der of  the  district  court  dismissing  an  appeal  to  that  court  from  justice's 
court,  but  after  the  time  for  appeal  had  expired  a  motion  was  made  in  the 
district  court  to  vacate  said  order,  which  motion  was  denied,  and  defendant 
attempted  to  appeal  from  the  order  refusing  to  vacate  the.  first  order.  Held, 
the  order  refusing  to  vacate  the  order  dismissing  the  appeal  is  not  appeala- 
ble. This  court  will  not  take  jurisdiction  of  an  order  of  the  district  court 
refusing  to  vacate  an  appealable  order  made  by  that  court;  nor  Ciin  the  time 
for  apf)eal  to  this  court  be  extended  by  an  order  of  the  court  below  va- 
cating or  refusing  to  vacate  an  appealable  ord^V.  Whether  an  order  dis- 
missing the  appeal  from  justice  court  to  the  district  court  is  appealable,  not 
decided.    Travelers'  Ins.  Co.  v.  California  Ins.  Co.  (or  Travelers'  Ins.  Co.  v. 


OF  APPEALS  IN  CIVIL  ACTIONS.  209 

Weber),  1  N.  D.  151,  50  N.  W.  703;  Henly  v.  Hastings,  3  Cal.  342;  Higgins 
V.  Mahoney,  50  Cal.  446;  Holmes  v.  McCleary,  63  Cal.  497;  Larkinv.  Larkin, 
(Cal.),  18  Pac.  396;  Thompson  v.  Lynch,  43  Cal.  482;  Kittredge  v.  Stevens,  23 
Cal.  283.  In  what  we  have  said  no  reference  is  made  to  such  orders  as  the 
district  court  may,  under  the  statute,  (section  4939,  Comp.  Laws),  vacate  on 
a  showing  that  they  were  made  by  mistake,  inadvence,or  excusable  neglect. 
Travelers'  Ins.  Co.  v.  California  Ins.  Co.,  supra.  Order  Denying  New 
Trial  Before  Judgment— Surplusage.  The  limitation  of  60  days  in  which 
an  appeal  from  an  order  may  be  taken,  under  this  section,  has  no  application 
to  an  order  denying  a  new  trial  made  and  determined  before  the  entry  of 
judgment,   when  an  appeal  is  taken  from  the  judgment,  and  the  making  of 

such  order  is  assigned  as  error.     Granger  v.  Roll  et  al, S.  D ,  62  N. 

W.  970;  Rev.  St.  Wis.,  sec.  3039;  Id.,  sec.  3042,5236,  subd.  3,  3070;  Machine 
Co.  V.  Heller,  41  Wis.  657;  Morris  v.  Niles,  67  Wis.  341,  30  N.  W.  353;  Ma- 
chine Co.  V.  Gurnee,  38  Wis.  533.  The  notice  of  appeal  from  the  order  de- 
nying the  new  trial  may  therefore  be  treated  assurplusage,  and  disregarded. 

Granger  v.  Roll  et  al,  supra;  Williams  v.  Williams,   S.   D ,  64  N. 

W.  38. 

(c).     When  Ripe  For  Appeal. 

Taxation  of  Costs,  Unnecessary — Entry.  A  judgment  is  appealable, 
though  the  costs  have  not  been  taxed  and  entered  in  the  judgment  when 
the  notice  of  appeal  is  served.  Williams  v.  Wait  2  S.  D.  210,  49  N.  W.  209., 
The  court  say:  "We  think  that  the  several  provisions  of  the  Code  upon 
"the  subject  contemplate  that  the  entry  of  the  judgment  by  the  clerk  will  bo 
"made  prior  to  the  adjustment  of  the  costs."  Referring  to  sees.  5214,  5216, 
5024,  5101,  5102,  5103,  5095,  5197,  Comp.  Laws;  Gilmartin  v.  Smith,  4  Sanf. 
684;  Scott  v.  Burton,  6  Tex.  323;  Stimson  v.  Huggins,  9  How.  Pr.  92;  Cord 
V.  Southwell,  15  Wis.  216;  Richardson  v.  Rogers,  37  Minn.  463,  35N.  W.  270; 
Adams  v.  Smith  et  al,  6  Dak.  94, 50  N.  W.  720;  Champion  v.  Board  of  County 
Com'rs.,  5  Dak.  416; 41  N.  W.  739.  Appeal  Before  Judgment  Entered— Ab- 
stracts. Appellant's  abstract  did  not  expressly  show  the  judgment  ap- 
pealed from  entered  or  perfected  prior  to  appeal.  Respondent's  additional 
abstract  stated  no  judgment  had  then  been  entered  or  judgment  roll  filed. 
The  clerk's  endorsement  showed  the  judgment  entered  at  a  date  nearly  four 
months  after  appeal;  his  certificate  showing  that  at  its  date,  five  months 
subsequent  to  appeal,  no  judgment  roll  had  been  filed.  Held,  the  appeal 
should  be  dismissed.     Greenly  v.  Hopkins,   . . . .  S.  D ,  64  N.  W.  1128. 

From  Judgment  Alone— Review.  An  appeal  from  the  judgment 
alone  does  not  bring  to  this  court  for  review  an  order  denying  or  granting 

anew  trial  made  after  judgment.     Gade  v.  Collins  et  al, S.  D ,  66 

N.  W.  466;  Hawkins  v.    Hubbard,  2  S.  D.  631,  51  N.  W.  774;  Mf'g  Co.  v. 
Galloway,  5  S.  D.  205,  58  N.  W.  565. 
14— T  P 


210  CODE  OF  CIVIL  PROCEDURE. 

CLERK  SENDS  TRANSCRIPT— WHEN  COPY— PAPERS— CERTIFI- 
CATE. §  5217  Comp.  Laws.  Upon  an  appeal  being:  per- 
fected, the  clerk  of  the  court  from  which  the  appeal  is  taken 
shall,  at  the  expense  of  the  appellant,  forthwith  transmit  to 
the  supreme  court,  if  the  appeal  is  from  a  judgment,  the  judg- 
ment roll;  if  the  appeal  is  from  an  order,  he  shall  transmit  the 
order  appealed  from,  and  the  original  papers  used  by  each 
party  on  the  application  for  the  order  appealed  from.  The 
court  may,  however,  in  each  case,  direct  copies  to  be  sent  in 
lieu  of  the  originals.  The  clerk  shall  also,  in  all  cases,  trans- 
mit to  the  supreme  court  the  notice  of  appeal  and  undertaking 
given  thereon;  and  he  shall  annex  to  the  papers  so  transmitted 
a  certificate,  under  his  hand  and  the  seal  of  the  court  from 
from  which  the  appeal  is  taken,  certifying  that  they  are  trans- 
mitted to  the  supreme  court  pursuant  to  such  appeal.  No  fur- 
ther certificate  or  attestation  shall  be  necessary.  (Sec.  4  chap. 
20,  Laws  1887,  Dak. ) 

SAME— WHEN  RESPONDENT  MAY  HAVE  RECORD  SENT  UP— 
COSTS.  §  5607  Rev.  Codes  N.  D.  Upon  an  appeal  being  per- 
fected the  clerk  of  the  court  from  which  the  appeal  is  taken 
shall  at  the  expense  of  the  appellant  forthwith  transmit  to  the 
supreme  court,  if  the  appeal  is  from  a  judgment,  the  judgment 
roll;  if  the  appeal  is  from  an  order,  he  shall  transmit  the  order 
appealed  from  and  the  original  papers  used  by  each  party  on 
the  application  for  such  order.  The  court  may,  however,  in 
case  of  either  judgment  or  order  upon  motion  of  either  party 
after  notice  to  the  adverse  party  for  good  cause  shown,  direct 
copies  to  be  transmitted  instead  of  the  originals.  The  clerk 
shall  also  in  all  cases  transmit  to  the  supreme  court  the  origin- 
al notice  of  appeal  and  the  undertaking  given  thereon;  and 
he  shall  annex  to  the  papers  so  transmitted  a  certificate  under 
his  hand  and  the  seal  of  the  court  from  which  the  appeal  is 
taken,  certifying  that  they  are  the  original  papers  or  copies  as 
the  case  may  be,  and  that  they  are  transmitted  to  the  supreme 
court  pursuant  to  such  appeal.  No  further  certificate  or  attes- 
tation shall  be  necessary;  provided,  that  if  the  appellant  does 


OF  APPEALS  IN  CIVIL  ACTIONS.  211 

not  within  thirty  days  after  his  appeal  is  perfected  cause  a 
proper  record  in  the  case  to  be  transmitted  to  the  supreme 
court  by  the  clerk  of  the  district  court,  the  respondent  may 
cause  such  record  to  be  transmitted  by  the  clerk  of  the  district 
court  to  the  clerk  of  the  supreme  court;  and  in  such  case  the 
respondent  may  recover  the  expense  thereof  as  costs  on  such 
appeal  in  case  the  judgment  or  order  appealed  from  is  in  whole 
or  in  part  affirmed.  (Sec.  4,  chap.  20,  laws  1887,  Dak.,  ara'd. 
sec.  5,  chap.  120,  laws  1891,  N.  D.,  am'd.  Rev.  Com'rs. ) 

Rev.  Stat.  Wis.  1878,  sec.  3050;  sec.  408,  C.  C.  P.;  Levisee  p.  119; 
Wait's  Code,  sec.  328;  Harst.  Pr.  Deer.  Code,  sec.  950,951,  958;  Rules  7  and 
27,  Sup.Ct.  S.  D.;  Rules  8  and  12  Sup.  Ct.  N.  D.  Post 

(a).  Clerk  May  Require  Fees  Paid.  The  clerk  of  the  court  below  is 
not  required  to  transmit  the  record  of  a  case  after  appeal  is  takes  until  hia 
fees  and  other  necessary  expenses  in  the  case  have  been  paid  by  appellant  or 
other  person  interested  in  prosecuting  the  appeal.  State  v.  Sioux  Falls 
Brewing  Co.  et  al,  2  S.  D.  363,  50  N.  W.  629.  Copy  Notice  of  Appeal 
Transmitted.  The  transmission  of  a  certified  copy  of  the  notice  of  appeal, 
by  the  clerk  below,  to  this  court,  is  essential  to  give  the  supreme  court  jur- 
isdiction. In  the  Matter  of  Opening  Gold  Street,  Dead  wood,  D.  T.,  George 
N.  Newton,  Appellant,  2  Dak.  39,  3  N.  W.  311,  8  N.  W.  139.  It  was  held  in 
Jasper  V.  Hazen,  1  N.  D.  210,  46  N.  W.  173,  that,  under  sec.  5217,  Comp.  Laws, 
the  statute,  except  in  cases  where  a  special  order  is  made,  abrogates  the 
rule  of  court  (rule  7),  requiring  the  clerk  of  the  district  court  to  send  up 
transcripts  in  all  cases.  Clerk  Annexes  Decision — Presumption.  It  is  the 
clerk's  duty,  in  cases  tried  by  the  district  court  without  a  jury,  to  annex  the 
decision  to  the  judgment  roll,  and  where  same  is  not  found  in  the  record 
transmitted  here  on  appeal  from  a  judgment,  it  will  be  presumed  in  absence 
of  explanation,  that  no  decision  was  made  or  filed.  Gaar,  Scott  &  Co.  v. 
Spaulding,  2  N.  D.  414,  51  N.  W.  867;  Thomas  v.  Tanner,  14  How  Pr.  426; 
Reich  v.  Mining  Co.  (Utah),  2  Pac.  703;  Hayne  New  Tr.  &  App.  p.  690,  721, 
722;  Mulcahy  v.  Glazier,  51  Cal.  626;  Smith  v.  Lawrence,  53  Cal.  34;  Carr  v. 
Cronin,  54  Cal.  600. 

Service  of  Appeal  Notice — Recital  in  Abstract — Presumption — 
Contents  of  Abstract.  A  statement  in  appellant's  abstract  that  due  ser- 
vice of  notice  of  appeal  and  undertaking  was  made  and  admitted  is  accepted 
as  true,  in  absence  of  anything  to  the  contrary,  and  presumption  is  that  the 

appeal  was  duly  perfected  as  required   by  statute.     Bell  v.  Thomas, S. 

D ,  63  N.  W.  907;  Day  v.  Ins.  Co.,  72  la.  597,  34  N.  W.  435.  It  is  fur- 
ther presumed,  in  absence  of  an  amended  or  additional  abstract,  that  appel- 
lant's abstract  jcontains  all  pleadings,  files  and  evidence  the  parties  and  trial 
court  deemed  essential  to  a  proper  determination  of  questions  presented  on 


212  CODE  OP  CIVIL  PROCEDURE. 

appeal.  Bell  v.  Thomas,  supra;  Randall  v.  Burke  Tp.,  4  S.  D.  337,  57  N. 
W.  4. 

(b).  Only  Judgrment  Boll  a  Certified  Record.  Nothing  more  than 
the  papers  constituting  the  judgment  roll,  as  defined  in  sec.  299,  Code  of 
Civil  Procedure  (Comp.  Laws,  sec.  5103)  ciin  be  made  part  of  the  record  on 
appeal  to  the  supreme  court,  by  a  certificate  of  the  clerk  or  judge  of  the 
trial  court,  unless  a  bill  of  exceptions  or  statement  of  the  case  shall  have 
been  duly  settled  and  certified  and  made  pftrt  of  the  record.  Minutes  or 
memoranda  of  what  takes  place,  made  by  the  judge  below,  or  by  his  author- 
ity, are  no  part  of  such  record,  or  transcript.  St.  Croix  Lumber  Co.  v.  Pen- 
nington, 2  Dak.  467,  11  N.  W.  497;  Fargo  et  al  v.  Palmer  et  al,  4  Dak.  232,  29 
N.  W.  463;  Gress  v.  Evans,  1  Dak.  387,  46  N.  W.  1132;  French  v.  Lancaster, 
2  Dak.  276,  9  N.  W.  716;  Golden  Teri-a  Mining  Co.  v.  Smith,  2  Dak.  377,  11 
N.  W.  98.  Papers  Not  Part  of  Record.  Papers  attached  to  the  judg- 
ment roll,  by  the  clei'k,  as  part  of  the  transcript  on  appeal,  but  not  appear- 
ing to  have  been  settled  or  allowed  as  an  exception,  or  part  of  a  bill  of  ex- 
ceptions, and  not  specifically  referred  to  in  either  the  clerk's  or  judge's  cer- 
tificate, are  not  a  part  of  the  record  on  appeal.  Fargo  v.  Palmer,  4  Dak. 
232,  29  N.  W.  463.  Stenographer's  Transcript  Not  Part  of  Roll.  A  tran- 
script embracing  evidence  extended  by  stenographer,  annexed  to  the  judg- 
ment roll  by  order  of  the  court  below  and  sent  up  as  part  of  the  record,  is 
neither  a  bill  exceptions  nor  a  statement  of  the  case,  and  no  part  of  judgment 
roll.  Wood  V.  Nissen,  2  N.  D.  26,  49  N.  W.  103;  Harper  v.  Minor,  27  Cal. 
107;  Hutton  v.  Reed,  25  Cal.  479.  The  stenographer's  transcript  of  proceed- 
ings on  trial  below,  used  on  motion  for  new  trial  to  show  errors  of  law  occur- 
ring at  the  trial,  is  not  an  authenticated  record.  Id.  Wood  v.  Nissen,  2  N. 
D.  26,  49  N.  W.  103;  Bailey  v.  Scott,  1  S.  D.  337,  47  N.  W.  286.  Review  of 
Order — Bill  or  Statement  Necessary— Stenographer's  Notes.  On  appeal 
from  a  judgment  the  evidence  will  not  be  considered  unless  embodied  in  a 
bill  or  statement,  which  rule  applies  to  the  review  of  an  order  designated 

for  review  in  notice  of  appeal.     Merchants'  Nat.  Bank  v.  McKinney, S. 

D ,60  N.    W.  162.     Stenographer's  or  referee's  notes  of  the  evidence 

cannot  take  the  place  of  a  bill  or  statement  settled  by  the  judge,  even  when 
so  stipulated  by  the  parties.  M.  Mandamus— Judgment  In — Appeal 
Record.  On  appeal  from  a  judgment  in  a  mandamus  proceeding  awarding 
a  peremptory  writ,  there  having  been  no  alternative  writ,  the 
record  here  is  plaintiff's  affidavit,  the  answer,  and  the  certified 
judgment    required    by    sec.  ,  5217,    Comp.    Laws.       Hardy    v.     Purinton, 

treasurer, S.  D ,  61  N.  W.  158.     Appeal  from  Order— Exceptions. 

On  an  appeal  from  an  order  made  upon  affidavits,  or  other  written  evidence, 
no  bill  of  exceptions  is  necessary.  Sec.  5217,  Comp.  Laws,  provides  that  in 
such  case  the  clerk  of  the  trial  court  shall  certify  and  transmit  to  the  su- 
preme pourt  the  original  papers  used  by  each  party  on   tlje  application,  or 


OF  APPEALS  IN  CIVIL  ACTIONS.  213 

copies  if  so  directed  by  the  court,  and  does  away  with  the  necessity  for  a 
bill  of  exceptions.     Bailey  v.  Scott,  1  S.  D.  337,  47  N.  W.  286. 

(c).     New  N.  D.  Statutes. 

Judge's  Certificate  to  Record — "All  Evidence  Taken."  The  judge's 
certificate  to  the  record  certified  only  that  it  contained  all  testimony  "taken" 
at  the  trial.  Held,  this  does  not  bring  the  case  within  the  terms  of  chap. 
82,  laws  1893,  N.  D.,  requiring  that  all  evidence  "offered"  in  such  cases 
"shall  be  taken  down  in  writing,"  and  that  "all  evideqce  taken  as  provided 
by  this  section  shall  be  certified  by  the  judge".      First  Nat.  Bank  of  Devil's 

Lake  v.  Merchants'  Nat.  Bank  of  Devil's  Lake  et  al, N.  D ,  64  N. 

W.  941.  Specifications  in  Bill — No  Review  When.  The  bill  of  excep- 
tions settled  below  and  in  the  record  here  contains  no  specifications  of  error 
occurring  at  the  trial,  nor  any  exception  pointing  out  wherein  any  finding  of 
fact  is  not  justified  by  the  evidence.  No  errors  are  assigned  in  appellant's 
brief.  Held,  under  the  statutes  and  rules  of  court,  and  the  authority  of 
Hostetter  v.  Elevator  Co.,  4  N.  D.  357,  61  N.  W.  49,  that  this  court  will  not 
examine  the  record  to  review  errors  in  procedure  below.     First  Nat.   Bank 

of  Devil's  Lake  v.  Merchants'  Nat.  Bank  of  Devil's  Lake  et  al, N.  D 

64  N.  W.  941.  Trial  De  Novo— Judge's  Certificate— Evidence— New 
Statute.  We  cannot  try  this  case  de  novo,  owing  to  insufficiency  of  judge's 
certificate  certifying  the  evidence.  Laws  1893,  ch.  82,  sec.  1.  It  does  not  ap- 
pear that  all  evidence  offered  is  before  us,  but  only  such  as  was  both  offered 

and   received.     Doran   v.  Dazey, N.  D ,  64  N.  W.  1023;  First  Nat. 

Bank  of  Devil's  Lake  v.  Merchants'  Nat.  Bank  of  Devil's  Lake  et  al, N. 

D ,  64  N.  W.  941.  While  the  certificate  of  the  trial  judge  as  to  the  evi- 
dence is  not  technically  such  as  this  court  said  in  Taylor  v.  Taylor,  5  N.  D. 

,  63  N.  W.  893,  was  necessary  to  enable  us  to  try  the  case  anew,  we  are 

not  disposed  to  permit  a  mere  technicality  to  throttle  a  full  investigation. 
This  case  was  tried  before  the  practice  had  been  settled  ubder  chap.  82,  laws 
1893,  as  to  a  trial  de  novo.  The  certificate  recites  that  the  record  contains 
"all  the  proceedings  had  and  testimony  given  on  the  trial  of  the  action," 
and  the  record  shows  that  no  testimony  offered  was  excluded.  We  pass  up- 
on the  whole  case  in  this  instance,  without  establishing  it  as  a  precedent 
that  we  will  in  any  future  case  look  beyond  the  certificate.  NoUman  et  al  v. 
Evenson,  . . . .  N.  D 65  N.  W.  686. 

Papers  Identified  by  Court  and  Clerk— Purging  Record.  Where 
the  motion  for  a  new  trial  was  beard  in  part  upon  papers  properly  identified 
by  the  judge  and  certified  by  the  clerk  below,  and  appeal  is  taken  from  an 
order  denying  new  trial,  a  motion  to  purge  the  record  of  such  papers  because 
same  are  not  authenticated  by  bill  or  statement  cannot  be  sustained.  Under 
sec.  5,  ch.  120,  laws  1891,  no  bill  or  statement  is  required  to  bring  such  pa- 
pers and  documents  before  the  court.  Goose  River  Bank  v.  Gilmore  et  alj 
3  N.  D.  188,  54  N.  W.  1032. 


214  CODE  OF  CIVIL  PROCEDURE. 


(d).  Amending  Record — Evidence — Practice.  On  appeal  from  an 
order,  respondent  claiming  evidence  was  received  on  the  hearing  in  court 
below  not  in  the  record,  the  proper  practice  is  to  bring  the  fact  of  such 
omission  to  this  court  by  motion,  supported  by  afBdavits,  or  certificate  of 
the  trial  judge,  or  both,  not  by  filing  additional  abstract.  Foley-Wads- 
worth  Implement  Co.  v.  Porteous, S.  D ,  63  N.  W.  155.  Oral  Evi- 
dence Used  on  Order  Below.  All  oral  evidence  used  in  court  below  when 
an  order  is  made,  must  be  brought  here  on  appeal  from  the  order,  by  bill 
or  statement;  and  until  it  is  made  part  of  the  record  the  appeal  is  not  per- 
fected for  a  hearing  in  this  court.  Id.  Banlc  v.  McKinney  (on  rehearing) 
. . .'.  S.  D  . . .,  60  N.  W.  162.  Power  of  Trial  Court  To  Amend,  After  Ar- 
gument Above.  When  the  original  papers  are  sent  to  this  court  on  appeal 
from  district  court,  and  the  case  has  been  fully  argued  and  submitted  upon 
such  record,  the  trial  court  has  thereafter  no  authority  or  power  to  amenp 
or  correct  such  record,  unless  upon  application  to  this  court  the  record  is 
remanded  for  such  purposes.  Moore  v.  Booker  et  al,  4  N.  D.  543,  62  N.  W. 
607  (on  rehearing);  Levi  v.  Karrick,  15  la.  444;  Carmichael  v.  Vandeburr,  51 
la.  225,  1  N.  W.  477;  Perry  v.  Breed,  117  Mass.  155;  Penrice  v.  Wallis,  37 
Miss.  172;  Keyser  v.  Farr,  105  U.  S.  265;  State  v.  Jackson  (N.  C),  16  S.  E. 
906;  Elliott  App.  Proc,  sec.  205;  Chesley  v.  Boom  Co.,  39  Minn.  83,  38  N. 
W.  769;  Spensley  v.  Ins.  Co.,  62  Wis.  443,  22  N.  W.  740.  Additional  Ab- 
stract, When  Proper.  Where  appellant  includes  in  his  abstract  evidence 
which  respondent  claims  was  not  before  the  court  below  and  does  not  con- 
stitute part  of  bill  of  exceptions,  the  proper  practice  is  to  bring  same  to  the 
attention  of  this  court  by  an  additional  abstract.  ToUerton  &  Stetson  Co.  v. 
Casperson S.  D ,  63  N.  W.  908. 

(e).  Reinstating  Appeal — Default — Diligence — Rule  9.  The  appeals 
in  these  cases  having  been  dismissed  for  failure  to  file  transcripts  within 
the  time  prescribed  by  rule  9,  held,  on  motion  to  reinstate  such  appeals,  that 
appellants  have  not  excused  their  default.  Said  rule  does  not  deny  appel- 
lant a  right  to  be  heard  on  the  question  whether  he  has  failed  to  send  up 
the  record  in  time.  The  excuse  for  the  delay  in  sending  up  the  records  is 
the  alleged  failure  of  the  judge  before  whom  the  motion  to  dissolve  the  at- 
tachments, from  the  orders  vacating  which  these  appeals  are  taken,  to  set- 
tle the  question  as  to  what  papers  were  used  on  such  motions,  in  time  to  en- 
able appellants  to  comply  with  the  rule.  We  are  not  satisfied  that  appel- 
lants were  diligent  in  presenting  this  matter  to  the  judge.  Walter  A. 
Wood  Har.  Co.  v.  Heidel  etal,  (Black  intervener).  Duluth  Dry-Goods  Co.  v. 
same  (two  cases).  Merchant's  State  Bank  of  Fargo  v.  same,  4  N.  D.  427,  61 
N.  W.  155;  Grigsby  v.  Purcell,  99  U.  3.  505;  Richardson  v.  Green,  130  U. 
S.  104,  9  Sup.  Ct.  448;  Fayolle  v.  R.  R.  Co.,  124  U.  S.  519,  8  Sup.  Ct.  588; 
Spoore  v.  Fannan,  16  N.  Y.  620;  Smith  v.  Solomon  (Cal.),  24  Pac.  286;  Tile 
Works  T.  Hall  (Neb.),  44  N.  W.  45. 


OP  APPEALS  IN  CIVIL  ACTIONS.  2l5 

Appeal  Pending  Former  Appeal  Nugatory.  An  appeal  to  this  court 
being  perfected,  a  subsequent  appeal  while  such  former  appeal  is  pending, 
is  nugatory.     State  ex  rel  Gunderson,   S.  D. ,  60  N.  W.  75. 

MONEY  IN  LIEU  OF  BOND— NOTICE— WAIVER.  §  5218  Coiilp. 
Laws;  §  5608  Rev.  Codes  N.  D.  When  the  appellant  is  re- 
quired, under  any  provision  of  this  act,  to  give  an  undertaking, 
he  may  in  lieu  thereof  deposit  with  the  clerk  of  the  court  in 
which  the  judgment  or  order  appealed  from  is  entered  (who 
shall  give  a  receipt  therefor),  a  sum  of  money  equal  to  the 
amount  for  which  such  undertaking  is  required  to  be  given, 
and  in  lieu  of  the  service  of  such  undertaking,  serve  a  notice  of 
the  making  of  such  deposit.  Such  deposit  and  notice  shall 
have  the  same  effect  as  the  service  of  the  required  undertaking, 
and  be  held  to  answer  the  event  of  the  appeal  upon  the  terms 
prescribed  for  the  undertaking,  in  lieu  of  which  the  same  is 
deposited.  Any  such  undertaking  and  deposit  may  be  waived 
in  writing  by  the  respondent  for  whose  benefit  the  same  is  re- 
quired to  be  made,  and  such  waiver  shall  have  the  same  effect 
as  the  giving  of  the  undertaking  would  have  had.  (Sec.  5, 
chap.  20,  Laws  1887,  Dak.;  sec.  6,  chap.  120,  Laws  1891, 
N.  D. ) 

Rev.  Stat.  Wis.  1878,  sec.  3051;  and  see  sec.  414,  C,  C.  P.;  Levisee,  p. 
122;  Harst.  Pr.  Deer.  Code,  sec.  941. 

Consult  following  sections  in  this  chapter. 

UNDERTAKING  REQUIRED— STATE  EXEMPTED.  §  5219  Comp. 
Laws;  §  5609  Rev.  Codes  N.  D.  To  render  an  appeal  effect- 
ual for  any  purpose,  an  undertaking  must  be  executed  on  the 
part  of  the  appellant  by  at  least  two  sureties,  to  the  effect  that 
the  appellant  will  pay  all  costs  and  damages  which  may  be 
awarded  against  him  on  the  appeal,  not  exceeding  two  hundred 
and  fifty  dollars;  Provided,  that  no  bond  shall  in  any  action  or 
proceeding  be  required  of  the  State  of  South  Dakota,  or  any 
county,  incorporated  town  or  city  thereof,  on  any  appeal  to  any 
court  of  the  State  of  South  Dakota,  when  the  state,  or  any 
county,  incorporated  town  or  city  shall  be  the  party  directly 
interested  therein.  (Sec.  6,  chap.  20  Laws  1887,  Dak.;  sec,  1, 
chap.  26.  Id.) 


216  CODE  OF  CIVIL  PROCEDURE. 

[Soc.  5609,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  proviso  is 
omitted;  (sec.  7,  chap.  120,  hivvs  1891,  N.  D.)] 

Rev.  Stat.  Wis.  1878,  sec.  3052. 

Sec.  414,  420,  C.  C.  P.;  Levisee  p.  122,  124;  Wait's  Code  §334;  Harst 
Pr.  Deer.  Code  §941. 

Consult  preceding  section,  and  following  sections. 

STAY  OF  EXECUTION— CONDITIONS  OF  UNDERTAKING.  § 
5220,  Comp.  Laws;  §  5610  Rev,  Codes  N.  D.  If  the  appeal  be 
from  a  judgment  directing  the  payment  of  money  it  shall  not 
stay  the  execution  of  the  judgment  unless  an  undertaking  be 
executed  on  the  part  of  the  appellant,  by  at  least  two  sureties, 
to  the  effect  that  if  the  judgment  appealed  from,  or  any  part 
thereof,  be  affirmed,  the  appellant  will  pay  the  amount  directed 
to  be  paid  by  the  judgment,  or  the  part  of  such  amount  as  to 
which  the  judgment  shall  be  affirmed,  if  it  be  affirmed  only  in 
part,  and  all  damages  which  shall  be  awarded  against  the  ap- 
pellant on  appeal  (Sec.  7,  chap.  20,  Laws  1887,  Dak.;  sec.  8, 
chap.  120,  Laws  1891,  N.  D. ) 

Rev.  Stat.  Wis.  1878,  sec.  3053. 

Sec.  415  C.  C.  P.;  Levisee  p.  122;  Wait's  Code  §  335;  Harst.  Pr.  Deer. 
Code  §  942. 

Consult  preceding  section,  and  sees.  5226,  5227,  Comp.  Laws;  sees.  5616, 
5617,  Rev.  Codes.  *N.  D. 

Contest  Proceeding — No  Stay — Statutes  Construed.  In  Flypaa  v. 
Brown  Co., S.  D ,  62  N.  W.  962,  in  holding  that  no  stay  of  proceed- 
ings can  be  effected  under  the  statute,  on  appeal  from  a  final  judgment  in  a 
contest  proceeding,  the  court  say:  "No  provision  of  chapter  16  of  the  Com- 
piled Laws  authorizes  a  stay  of  execution,  unless  the  judgment  appealed 
'direct  th«  payment  of  money';  'the  assignment  or  delivery  of  documents  or 
personal  property';  'the  execution  of  a  conveyance  or  other  instrument';  'the 
sale  or  delivery  of  possession  of  real  property';  'the  sale  of  mortgaged  prem- 
iss'; 'the  abatement  or  restraint  of  the  continuance  of  a  nuisance';  or  unless 
'the  judgment  appealed  from  direct  the  doing  of  any  particular  act  or  thing, 
and  no  express  provision  is  made  by  the  statute  in  regard  to  the  undertak- 
ing to  be  given  on  jippeal  therefrom.' " 

Promisee  in  Undertaking — Interpretation  of  Statute — Its  Origin. 
TJnder  our  statute  the  undertaking  on  appeal  to  stay  execution  of  the  judg- 
ment appealed  from  does  not  run  to  any  named  promisee,  but,  prima  facie, 
the  promisee  is  the  party  the  execution  of  whose  judgment  is  stayed.     Bem 

et  al  V.  Shoemaker  et  al, S.  D. ,  64  N.  W.  544;  Van  Dyke  v.  Weil, 

18  Wis.  277;  Northwestern  Mut.  L.  Ins.  Co.  v.  Park  Hotel  Co.,  37  Wis.   125; 


OF  APPEALS  IN  CIVIL  ACTIONS.  217 

Comp.  Laws,  sec.  5218.  In  the  Bern  case,  supra,  the  court  say:  "In  some  of 
the  states  this  security  on  appeal  either  for  costs  or  for  a  stay  is  in  the  form 
of  a  bond;  in  others,  it  is  an  undertaking.  By  some  statutes  the  security 
runs  to  the  'adverse  party';  by  some,  to  the  'opposite  party';  by  some,  to  the 
'respondent,'  or  'appellee.'  Our  provision  was  taken  from  Wisconsin,  and 
while  no  promisee  is  expressly  named,  it  is  clear  that  the  purpose  of  the  leg- 
islature was  to  afford  a  protection  or  benefit  to  the  party  against  whom  the 
appeal  was  taken."  Citing  the  above  Wisconsin  cases,  and  the  following: 
Eastman  v.  Wright,  6  Pick.  316;  Pearson  v.  Nesbit  (N.  C),  17  Am.  Dec.  569; 
McElhanon  v.  McElhanon,  63  111.  457. 

Reversal  in  Part— Liability  of  Sureties.  In  an  action  by  heirs,  the 
administrator  refusing  to  sue,  against  decedent's  widow,  to  bring  in  as  as- 
sets of  the  estate  certain  realty  and  personal  property  standing  in  her  name 
and  claimed  by  her,  plaintiffs  had  judgment  adjudging  all  the  property, 
real  and  personal,  to  belong  to  and  should  be  turned  into  the  estate.  De- 
fendants appealed,  and  gave  the  f-tatutory  undertaking  to  stay  execution. 
This  court  held  the  judgment  was  right  as  to  the  personalty,  but  wrong  as 
to  the  realty,  reversed  the  judgment  as  entered,  remanded  the  case  with  di- 
rections to  enter  judgment  accordingly.  Jleld,  this  was  not  such  an  abso- 
lute reversal  as  dischai-ged  the  undertaking,  but  was  in  effect  an  affirmance 
in  part  and  a  reversal  in  part,  and  that  in  an  action  on  such  undertaking  a 
complaint  alleging  these   facts   was  not  on  that  account  demurrable,  as  not 

stating  a  cause  of  action.     Bem  et  al  v.  Shoemaker  et  al,  S.  D ,64 

N.  W.  544;  Butt  v.  Stinger,  4  Cranch  C.  C.  252,  Fed.  Cas.  No.  2246;  Trent  v. 
Rhomberg,  66  Tex.  253,  18  S.  W.  510;  Krone  v.  Cooper,  43  Ark.  554;  Thom- 
son V.  Chapman,  83  Va.  223,  2  S.  E.  273;  Chapman  v.  Shepherd,  24  Grat.  391; 
Wood  V.  Orford,  56  Cal.  157. 

[Author's  Note.  Below  are  cited  some  Wis.  cases.] 
Policy  of  Law  to  Stay  Proceedings — Power  of  Supreme  Court — 
Appeal  Effects  Stay,  When.  It  is  the  general  policy  of  the  law  to  allow 
the  party  against  whom  judicial  proceedings  are  commenced  to  stay  pro- 
ceedings under  the  decision  of  an  inferior  tribunal  against  him,  from  which 
he  has  appealed,  on  giving  just  and  adequate  security;  and  it  is  usual  for 
the  legislature,  in  providing  for  an  appeal,  to  provide  adequate  security, 
and  for  stay  of  proceedings  pending  appeal;  and  in  case  of  omission. by  the 
legislature  to  provide  for  such  stay,  the  appellate  court  may  order  the  same, 
and  fix  the  amount  of  security  to  be  given.  Hudson  et  al  v.  Smith,  9  Wis. 
122.  If  it  depends  entirely  on  the  general  power  to  stay  proceedings,  in  any 
matter  appealed  to  it  then  upon  a  proper  case  made  the  court  will  order  such 
stay.  This  power  is  not  dependent  upon  any  statutory  enactment,  but  rests 
on  the  policy  of  the  law  allowing  the  appeal.  Id.  In  absence  of  positive 
provisions  of  statute  to  the  contrary,  an  appeal  perfected  as  the  law  re- 
quires does  propia  vigore  stay  proceedings  under  the  order  appealed  from.  Id 


218  CODE  OF  CIVIL  PROCEDURE. 

Power  of  Supreme  Jud^  in  Vacation.  The  supreme  court  has  power  to 
order  a  stay  of  proceedings  in  the  court  below  touching  any  matter  of  ap- 
peal to  the  supreme  court;  and  a  justice  thereof  has  power  in  vacation,  to 
make  a  provisional  order  staying  proceedings  below,  to  enable  a  party  to 
make  or  renew,  if  need  be,  a  similar  motion  in  term.  But  in  such  cases  the 
justice  ought  to  look  into  the  nature,  circumstances  and  merits  of  the  order 
appealed  from.  Waterman  v.  Rsiymond  et  al,  5  Wis.  185.  Appeal  Not 
Dismissed,  When.  A  sufficient  unde-taking  on  appeal  having  been  filed 
and  the  api)oal  regularly  taken,  this  court  will  not  compel  appellant  to  stay 
proceedings  on  the  judgment  below  by  executing  an  undertaking  for  that 
purpose,  or  in  default  of  his  so  doing  dismiss  the  appeal.  Whether  he  does 
so  or  not  in  no  way  affects  the  appeal.  Bird  v.  Morrison  et  al,  9  Wis. 
551. 

SAME— ON  ASSIGNMENT,  ETC.,  OF  DOCUMENTS  OR  PERSONAL 
PROPERTY.  §  5221  Comp.  Laws;  §  6511  Rev.  Codes  N.  D.  If 
the  judgment  appealed  from  direct  the  assignment  or  delivery 
of  documents  or  personal  property,  the  execution  of  the  judg- 
ment shall  not  be  delayed  by. the  appeal,  unless  the  things  re- 
quired to  be  assigned  or  delivered  be  brought  into  the  court  or 
placed  in  the  custody  of  such  officer  or  receiver  as  the  court 
or  presiding  judge  thereof  shall  appoint,  or  unless  an  under- 
taking be  entered  on  the  part  of  the  appellant,  by  at  least  two 
sureties,  in  such  sum  as  the  court  or  presiding  judge  thereof 
shall  direct,  to  the  effect  that  the  appellant  will  obey  the  order 
of  the  appellate  court  on  the  appeal.  (Sec.  8,  chap.  20,  laws 
1887,  Dak. ) 

[Sec.  5611,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "an 
undertaking  be  entered"  are  changed  to  read  "an  undertaking  is  entered 
into."    (Sec.  9,  chap.  120,  laws  1891,  N.  D.)] 

Rev.  Stat.  Wis.  1878,  sec.  3054. 

Sec.  416,  422  C.  C.  P.;  Levisee  p.  123,  124;  Wait's  Code  §  336;  Harst. 
Pr.  Deer.   Code    §  943. 

Consult  preceding  section,  and  three  following  sections. 

Consult  also,  particularly  Bem  et  al  v.  Shoemaker  et  al,  and  Flypaa  v. 
Brown  Co.,  cited  under  preceding  section. 

Libel  in  Admiralty— This  Section  Not  Applicable— Common  Law 
Bond.  In  a  libel  in  a  possessory  action  in  rem,  the  judgment  from  which 
the  appeal  was  taken  merely  adjudged  that  claimant  was  entitled  to  posses- 
sion, and  ordered  the  marshal,  who  was  legally  in  custody  of  the  property,  to 
deliver  it  to  him.  IZeid,  (by  Corliss,  J.),  that  this  was  not  a  judgment  di- 
reciing  delivery  of  personal  property   within  the  meaning  of  sec.  416,  C.  C. 


OF  APPEALS  IN  CIVIL  ACTIONS.  2l9 

P.  (Comp.  Laws,  sec.  5221),  assuming  such  statute  to  be  applicable  to  ad- 
miralty casts,  and  that,  therefore,  on  this  assumption,  appellants  could  have 
secured  a  stay  of  proceedings  on  the  giving-  of  a  mere  cost  bond.     Code  Civ. 

Proc,  sec.  421,  Rev.  Codes  1877.  Braithwaite  v.  Jordan  et  al, N.  D 65 

N.  W.  701.  The  undertaking  on  appeal  given  in  this  case,  which  was  giv- 
en to  secure  a  stay  of  proceedings,  was  therefore,  so  far  as  it  was*  more  than 
a  mere  cost  unuertaking,  without  consideration,  and  void  as  a  statutory  un- 
dertaliing.  But  the  majority  of  the  court  thought  the  undertaking  would 
be  valid,  even  under  the  statute.  But  held,  that  the  practice  on  appeal  in 
admiralty  cases  to  the  territorial  supreme  court  was  not  regulated  by  the 
territorial  statutes,  but  by  rules  and  usages  of  courts  of  admiralty,  which 
give  no  absolute  right  to  perfect  appeal  and  secure  stay  of  execution,  on 
giving  of  a  mere  cost  bond;  though  the  undertaking  in  question  was  treated 
by  respondent  as  entitling  appellant  to  a  stay;  held,  further,  that  the  under- 
taking was  valid  as  a  common  law  obligation  supported  by  a  sufficient  con- 
sideration. Braithwaite  v.  Jordan  et  al,  supra;  In  re  Schedel's  Estate 
(Cal.),  10  Pac.  334;  Pennie  v.  Superior  Ct.  (Cal.),  26  Pac.  617;  Born  v.  Horst- 
man  (Cal.),  22  Pac.  169;  Powers  v.  Crane  (Cal.),  7  Pac.  135;  Powers  v.  Cha- 
bot  (Cal  ),  28  Pac.  1070;  McCallion  v.  Society  (Cal.),  33  Pac.  329;  Post  v. 
Doremus,  60  N,  Y.  371;  Freeman  v.  Hill  (Kan.  Sup.),  25  Pac.  870;  Snow  v. 
Holmes,  64  Cal.  232,  30  Pac.  806;  The  City  of  Panama,  1  Wash.  T.  615; 
Nickels  v.  Griffin,  1  Wash.  T.  374,  394,  395;  Zephyr  v.  Brown,  2  Wash.  T. 
44,  3  Pac.  186.  Same— Good  Voluntary  Bond.  The  vessel  at  time  of  ap- 
peal was  in  actual  possession  of  appellants,  which  fact  appeared  of  record. 
The  bond  recited  that  the  judgment  was  against  them  for  delivery  of  pos- 
session to  claimant.  Having  been  given  to  secure  a  stay  of  proceedings  un- 
der these  circumstances,  it  was  necessarily  given  to  enable  appellants  to  re- 
tain possession  pending  appeal.  Held,  it  was  in  the  nature  of  a  stipulation 
for  value,  and  claimant,  in  reliance  thereon,  actually  refrained  from  dis- 
turbing appellant's  possession  pending  appeal,  the  instrument  was  valid  as 

a  voluntary  bond.     Braithwaite  v.  Jorden  et  al  (on  rehearing,) N.    D. 

...  ,  65  N.  W.  701  (718);  Messonier  v.  Kauman,  3  Johns.  Ch.  66;  Bradwell 
v.  Weeks,  1  Johns,  Ch.  325;  Brewster  v.  Cowan  (Conn.),  10  Atl.  509-511;  Al- 
len V.  Hopper,  24  N.  J.  Law  514;  Entwistle  v.  Shepard,  2  Term  R.  78; 
Kempland  v.  Macauley.  4  Term.  R.  436;  The  John,  2  Hagg.  Adm.  305-317; 
The  Elize,  2  Spinks  34;  The  Gram  Para,  10  Wheat.  497. 

Replevin— Parties  to  Bond— New  Liability.  Where  defendant's 
sureties  on  appeal  in  replevin  ai*e  the  same  as  the  sureties  on  the  replevin 
bond,  against  whom  the  judgment  was  entered  as  well  as  against  defendant, 
it  seems  that  the  undertaking  on  appeal  is  not  sufficient  to  stay  proceedings 
on  the  judgment;  (following  S.  C,  23  Wis.  506.)  Bonesteel  et  al  v.  Orvis, 
20  Wis.  646;  but  the  undertaking  to  pay  costs  and  damages  on  appeal,  is 
the  assumption  of  a  new  liability  by  such  sureties,  and  is  sufficient  to  per- 
fect the  appeal.     Id. 


220  CODE  OF  CIVIL  PROCEDURE. 

SAME— ON  EXECUTION  OF  CONVEYANCE,  ETC.  §  5222,  Comp. 
Laws;  §  5612  Rev.  Codes  N.  D.  If  the  judgment  appealed  from 
direct  the  execution  of  a  conveyance  or  other  instrument  the 
execution  of  the  judgment  shall  not  be  stayed  by  the  appeal, 
unless  the  instrument  shall  have  been  executed  and  deposited 
with  the  clerk  with  whom  the  judgment  is  entered,  to  abide  the 
judgment  of  the  appellate  court.  (Sec.  9,  chap.  20,  Laws  1887, 
Dak.;  sec.  10,  chap.  120,  Laws  1891,  N.  D.) 

Rev.  Stat.  Wis.  1878,  sec.  3055. 

Sec.  417  C.  C.  P.;  Levisee,  p.  123;  Wait's  Code  I  337;  Harst.  Pr.  Deer. 
Code  2  944. 

Consult  two  preceding  sections,  and  decisions  thereunder. 

SAME— ON  SALE,  ETC.,  OF  REALTY.  §  5223  Comp.  Laws;  § 
5613  Rev.  Codes  N.  D.  If  the  judgment  appealed  from  direct 
the  sale  or  delivery  of  possession  of  real  property  (except  in 
actions  for  foreclosure  of  mortgage),  the  execution  of  the  same 
shall  not  be  stayed  unless  an  undertaking  be  executed  on  the 
part  of  the  appellant,  by  at  least  two  sureties,  in  such  sum  as 
the  court  or  presiding  judge  thereof  shall  direct,  to  the  effect 
that  during  the  possession  of  such  property  by  the  appellant, 
he  will  not  commit  or  suffer  to  be  committed  any  waste  thereon, 
and  that  if  the  judgment  be  affirmed,  he  will  pay  the  value  of 
the  use  and  occupation  of  the  property,  from  the  time  of  the 
appeal  until  the  delivery  of  possession  thereof,  pursuant  to  the 
judgment.  Sec.  10,  chap.  20,  Laws  1887,  Dak.;  sec.  11,  chap. 
120,  Laws  1891,  N.  D.) 

Rev.  Stat.  Wis.  1878,  sec.  3056. 

Sec.  418  C.  C.  P.;  Levisee  p.  123;  Wait's  Code  §  338;  Harst  Pr. 
Deer  Code,  §  945. 

Consult  three  preceding,  and  the  following-  section: 

Possession  of  Realty— Changing'  Wording  of  Bond.  On  appeal  to 
this  court  from  a  district  court  order  refusing  to  vacate  an  order  for  dismis- 
sal of  an  appeal  from  justice's  court,  in  an  action  for  possession  of  realty,  an 
appeal  undertakiiig  was  given  in  which,  in  the  language  constituting  the 
condition,  the  term  "if  the  judgment  be  affirmed"  was  used;  held,  in  an  ac- 
tion on  the  undertaking,  that  the  word  "judgment"  could  not  be  expunged 
and  the  word  "order"  substituted,  as  a  clerical  error;  there  being  no  at- 
tempt to  reform  the  instrument  on  ground  of  mistake.  Travelers'  Ins.  Co. 
V.  Weber  et  al,  4  N.  D.  135,  59  N.  W.  529. 


OF  APPEALS  IN  CIVIL  ACTIONS.  221 

SAME— ON  SALE  OF  MORTGAGED  PREMISES,  §  5224  Comp. 
Laws;  §  5614  Rev.  Codes  N.  D.  If  the  judgment  appealed  from 
direct  the  sale  of  mortgaged  premises,  the  execution  thereof 
shall  not  be  stayed  by  the  appeal,  unless  an  undertaking  be  ex- 
ecuted on  the  part  of  the  appellant,  by  at  least  two  sureties, 
conditioned  for  the  payment  of  any  deficiency  which  may  arise 
on  such  sale,  not  exceeding  such  sum  as  shall  be  fixed  by  the 
court  or  presiding  judge  thereof,  to  be  specified  in  the  under- 
taking, and  all  costs  and  damages  which  may  be  awarded  to 
the  respondent  on  such  appeal.  (Sec.  11,  chap.  20,  Laws  1887, 
Dak. ;  sec.  12,  chap.  120,  Laws  1891,  N.  D. ) 

Rev.  Slat.  Wis.  1878,  §  3057;  Wait's  Code,  §  338;  Harst  Pr.  Deer.  Code, 
§  945. 

Consult  two  preceding  sections,  and  decisions  under  sec.  5220,  Comp. 
Laws,  sec.  6610,  Rev.  Codes,  N.  D.,  supra. 

SAME— ABATEMENT,  ETC.,  OF  NUISANCE.  §  5225,  Comp. 
Laws;  §  5615  Rev.  Codes  N.  D.  If  the  judgment  appealed 
from  direct  the  abatement,  or  restraint  of  the  continuance  of  a 
nuisance,  either  public  or  private,  the  execution  of  the  judg- 
ment shall  not  be  stayed  by  the  appeal  unless  an  undertaking 
be  entered  on  the  part  of  the  appellant,  by  at  least  two  sure- 
ties, in  such  sum  as  the  court,  or  presiding  judge  thereof,  shall 
direct,  to  the  effect  that  the  appellant  will  pay  all  damages 
which  the  opposite  party  may  sustain  by  the  continuance  of 
such  nuisance,     (Sec.  12,  chap.  20,  Laws  1887,  Dak.) 

[Sec.  5615,  Rev.  Codes,  N.  U.,  is  the  same,  except  that  the  words  "un- 
less an  undertaking  be  entered"  are  changed  to  read  "unless  an  undertaking 
is  entered  into."    (Sec.  13,  chap.  120,  Laws  1891,  N.  D.)] 

Rev.  Stat.  Wis.  1878,  sec.  3058. 

SAME -WHERE  NO  STATUTORY  PROVISION  APPLIES.  §  5226, 
Comp.  Laws;  §  5616  Rev.  Codes  N.  D.  If  the  judgment  ap- 
pealed from  direct  the  doing  of  any  particular  act  or  thing,  and 
no  express  provision  is  made  by  the  statute  in  regard  to  the 
undertaking  to  be  given  on  appeal  therefrom,  the  execution 
thereof  shall  not  be  stayed  by  the  appeal  therefrom  unless  an  un- 
dertaking be  entered  on  the  part  of  the  appellant,  in  such  sum 
3-8  the  court,  or  presiding  judge  thereof,  shall  direct,  and  by  a,t 


222  CODE  OF  CIVIL  PROCEDURE. 


least  two  sureties,  to  the  effect  that  the  appellant  will  pay  all 
damages  which  the  opposite  party  may  have  sustained  by  not 
doing  the  particular  act  or  thing  directed  to  be  done  by  the 
judgment  appealed  from,  and  to  such  further  effect  as  such 
court  or  judge  shall  in  discretion  direct..  (Sec.  13,  chap.  20, 
Laws  1887,  Dak.) 

[Sec.  5616,  Rev.  Codes,  is  the  same,  except  that  the  words  "unless  an 
undertaking  be  entered"  are  changed  to  read  "unless  an  undertaking  is  en- 
tered into:"    (Sec.  14,  chap.  120,  Laws  1891,  N.  D.)] 

Rev.  Stat.  Wis.  1878,  §  3059;  §  422  C.  C.  P.;  Levisee  p.  124. 

Consult  sees.  5218,  5219,  Comp.  Laws,  sees.  5608,  5609,  Rev.  Codes,  N. 
D.;  also,  Wisconsin  decisions  cited  under  sec.  5220,  Comp.  Laws,  sec.  5610, 
Rev.  Codes,  N.  D.,  supra. 

Election  Contest— No  Stay.  A  stay  of  proceedings  cannot  be  effected 
under  the  statute,  on  appeal  from  a  final  judgment  in  an  election  contest 
proceeding;  the  provisions  of  the  statute  commented  upon.  Flypaa  v. 
Brown  Co. S.  D ,  62  N.  W.  962. 

APPEAL  FROM  ORDER— STAY— UNDERTAKING— INTERMEDIATE 
ORDER.  §  5227  Comp.  Laws;  §  5617  Rev.  Codes  N.  D.  When 
the  appeal  is  from  an  order  the  execution  or  performance  there- 
of shall  not  be  delayed,  except  upon  compliance,  as  the  court 
or  presiding  judge  thereof  shall  direct,  and  when  so  required, 
an  undertaking  shall  be  executed  on  the  part  of  the  appellant, 
by  at  least  two  sureties  in  such  sums  and  to  such  effect  as  the 
court  or  presiding  judge  thereof  shall  direct;  such  effect  shall 
be  directed  in  accordance  with  the  nature  of  the  order  ap 
pealed  from,  corresponding  to  the  foregoing  provisions 
in  respect  to  appeals  from  judgments,  where  applicable, 
and  such  provision  shall  be  made  in  all  cases  as  shall  properly 
protect  the  respondent,  and  no  appeal  from  an  intermediate  or- 
der before  judgment  shall  stay  proceedings,  unless  the  court  or 
presiding  judge  thereof  shall,  in  his  discretion,  so  specially 
order.     (Sec.  14,  chap.  20,  Laws  1887,  Dak.) 

[Sec.  5617,  Rev.  Codes,  N.  D.,  ia  the  same,  except  that  in  lieu  of  the 
words  "except  upon  compliance,"  the  words  "except  upon  compliance  with 
such  conditions"  are  used.     (Sec.  15,  chap.  120,  Laws  1891,  N.  D.)] 

Rev.  Stat.  Wis.  sec.  3060. 

Consult  sees.  5218,  5219,  5226,  Comp.  Laws;  sees.  5608,  5609,  6616,  Rev. 
Codes,  N.  D.;  also  Wisconsin  decisions  cited  under  sec.  5220,  Comp.  Laws, 
sec.  5610,  Rev.  Codes,  N.  D.,    supra. 


OF  APPEALS  IN  CIVIL  ACTIONS.  223 


Order  Granting-  Injunction — Property  in  Statu  Q,uo.  Where  an 
appeal  is  from  an  order  granting  or  continuing  a  temporary  injunction  upon 
a  sufficient  bond,  the  only  purpose  and  effect  of  which  injunction  is  to  hold 
the  propei'ty  involved  in  statu  quo  during  the  pendency  of  the  litigation,  the 
title  to  the  property  being  in  dispute  and  in  doubt,  depending  upon  many 
questions  of  law,  and  probably  of  fact,  not  considered  or  discussed  by  coun- 
sel on  such  preliminary  appeal,  this  court  will  treat  the  question  of  title  as 
a  doubtful  one,  and  decide  only  whether,  under  such  circumstances,  the  tem- 
porary injunction  was  rightly  granted.  Huron  Waterworks  Co.  v.  City  of 
Huron  (on  rehearing),  4  S.  D.  102,  55  N.  W.  759. 

Habeas  Corpus — No  Discharge  by  Perfecting  Appeal.  On  habeas 
corpus,  it  was  urged  in  this  court,  upon  appeal,  that  the  petitioner  has  be- 
come entitled  to  his  discharge  by  reason  of  his  having  perfected  an  appeal 
from  the  contempt  order.  But  the  perfecting  of  an  appeal  does  not  stay  the 
execution  of  such  order  To  secure  such  stay  appellant  (petitioner  here), 
should  have  complied  with  sec.  15,  chap.  ]20,  Laws  1891.  No  application 
was  made  to  the  district  court  to  have  the  terms  on  which  it  would  allow  a 
stay  of  proceedings  fixed.  State  ex  rel  Mears  v.  Barnes,  sheriff,  . . . .  N.  D. 
....,65  N.  W.688. 

Appeal  from  Intermediate  Order  Does  Not  Stay  Proceedings.  An 
appeal  from  an  intermediate  order  before  judgment,  does  not  stay  proceedings 
in  the  action  unless  the  court  so  orders.  Thus,  the  pendency  of  an  appeal 
from  an  order  striking  out  some  other  portion  of  the  answer  will  not  prevent 
the  making  of  a  subsequent  order  sustaining  or  overruling  a  demurrer  to  a 
counter-claim  in  such  answer.  Noonan  v.  Orton,  30  Wis.  356.  Setting 
Aside  Order  Appealed  From,  After  Appeal — Nullity.  Where  an  order 
was  made  fixing  the  amount  of  an  undertaking  to  perfect  appeal,  and  four 
days  afterward  the  respondent  procured  an  order  to  set  aside  and  stay  tho 
proceedings  under  the  first  order,  and  the  appellants  had  complied  with  the 
first  order,  and  perfected  the  appeal  before  service  of  the  second:  Held,  that 
the  appeal  itself  stayed  all  proceedings  in  the  circuit  court;  and  that  the 
last  order  was  a  nullity.  Spaulding  et  al  v.  Mil.  &  Hoi-icon  R.  Co.  et  al,  11 
Wis.  157;  Hudson  v.  Smith,  9  Wis.  122;  Beesan  v.  Eilers,  11  Wis.  289;  Grant 
v.  Conn.  M.  L.  Ins.  Co.,  28  Wis.  388. 

SAME— A  TTACHMENT,  INJUNCTION— UNDERTAKING— JUDGE'S 
ORDER— RESPONDENT'S  UNDERTAKING.  §  5228,  Comp.  Laws; 
§  5618  Rev.  Codes  N.  D.  When  a  party  shall  give  immediate 
notice  of  appeal  from  an  order  vacating  or  modifying  a  writ  of 
attachment,  or  from  an  order  denying,  dissolving,  or  modify- 
ing an  injunction,  he  may  within  three  days  thereafter  serve 
an  undertaking  executed  on  his  part  by  at  least  two  sureties  in 
such  sum  as  the  court  or  presiding  judge   thereof  shall  direct, 


224  CODE  OF  CIVIL  PROCEDURE. 

to  the  effect  that  if  the  order  appealed  from  or  any  part  thereof 
be  affirmed  the  appellant  will  pay  all  costs  and  damages  which 
may  be  awarded  against  him  on  appeal,  and  all  which  the  ad- 
verse party  may  sustain  by  reason  of  the  continuance  of  the  at- 
tachment, or  the  granting  or  continuance  of  the  injunction,  as 
the  case  may  be.  Upon  the  giving  of  such  undertaking  such 
court  or  judge  shall  order  the  attachment  to  be  continued,  and 
in  his  discretion,  may  order  the  injunction  asked  to  be  allowed, 
or  that  before  granted  to  be  continued  until  the  decision  of  the 
appeal,  unless  the  respondent  shall,  at  any  time  pending  the  ap- 
peal, give  an  undertaking,  with  sufficient  surety  in  a  sum  to  be 
fixed  by  the  court  or  presiding  judge,  to  abide  and  perform 
any  final  judgment  that  shall  be  rendered  in  favor  of  the  appel- 
lant in  the  action,  but  may  at  any  time  subsequently  vacate 
such  order  if  the  appeal  be  not  diligently  prosecuted.  (Sec. 
15,  chap.  20,  laws  1887,  Dak. ) 

[Sec.  5618,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  in  lieu  of  the 
words  "three  days,"  the  words  "six  days"  are  used.  (Sec.  16,  chap.  120, 
laws  1891,  N.  D.)] 

Rev.  Stat.  Wis  1878,  sec.  3061. 

Sec.  424,  425,22,  C.  C.  P.;  Levisee  p.  125,  4,  5;  Wait's  Code,  sec.  457; 
Harst.  Pr.  sec.  946. 

Consult  preceding  section. 

Section  Construed— Relates  To  Continuance  Of  Attachment. 
Sec.  5228,  Comp.  Laws,  has  no  reference  to  the  right  of  appeal,  but  re- 
lates solely  to  the  continuance  of  the  attachment  in  full  force  and  effect  pend- 
ing appeal;  so  held,  where  it  was  contended  that  no  appeal  lies  from  an  or- 
der dissolving  attachment,  when  no  stay-bond  or  undertaking  is  granted 
upon  such  order.  Quebec  Bank  v.  Carroll  et  al,  1  S.  D.  1,  44  N.  W.  723; 
Wyman  et  al  v.  Wilmarth,  1  S.  D.  35,  44  N.  W.  1151.  Consult  State  ex  rel 
V.  Rose,  4  N.  D.  319,  58  N.  W.  514  (520),  where  is  found  a  dictum  concerning 
appeal  undertaking  on  appeal  from  order  vacating  attachment. 

Injunction— Judge  at  Chambers.  A  party  applying  for  an  injunction, 
under  laws  of  1861  (Wis.),  to  a  judge  at  chambers,  who  wishes  to  appeal  to 
supreme  court  fi'om  an  order  refusing  his  application,  must  give  immediate 
notice  of  appeal,  and  must  within  three  days  tender  to  the  opposite  party  a 
written  undertaking,  etc.  Punch  et  al  v.  Town  of  New  Berlin  et  al,  20  Wis. 
189;  Couldren  v.  Caughey,  29  Wis.  317.  " 

APPEAL  BY  STATE;  STAYS  EXECUTION-COURT  MAY  REQUIRE 
SURETY— CAUSE  ADVANCED,     §  5229   Comp,    Laws.     When  the 


OF  APPEALS  IN  CIVIL  ACTIONS.  225 

state  or  any  state  officer,  or  state  board,  in  a  purely  official  ca- 
pacity or  any  municipal  corporation  or  its  officers  in  a  purely 
official  capacity,  within  the  state,  shall  take  an  appeal,  the  case 
appealed  shall  be  placed  on  the  supreme  court  calendar  im- 
mediately following  the  criminal  cases,  and  shall  have  preced- 
ence over  all  other  business  before  the  court,  except  criminal 
business,  and  shall  be  heard  and  determined  next  in  order. 
Service  of  the  notice  of  appeal  shall  perfect  the  appeal  and  stay 
the  execution  or  performance  of  the  judgment  or  order  ap- 
pealed from  and  no  undertaking  need  be  given.  But  the  su- 
preme court  may,  on  motion,  require  surety  to  be  given  in  such 
form  and  manner  as  it  shall  in  its  discretion  prescribe  as  a  con- 
dition of  the  further  prosecution  of  the  appeal.  (Sec.  16, 
chap.  20,  laws  1887,  Dak.,  am'd,  sec.  1,  chap.  59,  laws  1893, 
S.  D.  ) 

SAME.  §  5619  Rev.  Codes  N.  D.  When  the  state  or  any 
state  officer  or  state  board,  in  a  purely  official  capacity,  or  any  mu- 
nicipal corporation  within  the  state,  shall  take  an  appeal,  ser- 
vice of  the  notice  of  appeal  shall  perfect  the  appeal  and  stay 
the  execution  or  performance  of  the  judgment  or  order  ap- 
pealed from,  and  no  undertaking  need  be  given.  But  the  su- 
preme court  may  on  motion  require  surety  to  be  given,  in  such 
form  and  manner  as  it  shall  in  its  discretion  prescribe,  as  a 
condition  of  the  further  prosecution  of  the  appeal.  (Sec.  16, 
chap.  20,  laws  1887,  Dak.,  am'd,  sec.  17,  chap.  120,  laws  1891, 
N.  D.  ) 

Rev.  Stat.  Wis.  1878;  sec.  3062; 

Sec.  24,  C.  C.  P.;  Levisee,  p.  7. 

NEW  UNDERTAKING,  WHEN—CONSEQUENCE  OF  DEFAULT.  § 
5230  Comp.  Laws;  §  5620  Rev.  Codes  N.  D.  The  supreme 
court,  upon  satisfactory  proof  that  any  of  the  sureties  to  an  un- 
dertaking given  under  this  act  has  become  insolvent,  or  that 
his  circumstances  have  become  so  precarious  that  there  is  rea- 
son to  apprehend  that  the  undertaking  is  insufficient  security, 
iray  in  its  discretion  require  the  appellant  to  file  and  serve  a 
new  undertaking,  with  such  sureties  and  in  such  time  as  shall 
15— T  P 


226  CODE  OP  CIVIL  PROCEDURE. 

be  prescribed,  and  that  in  default  thereof  the  appeal  shall  be 
dismissed  or  the  stay  of  proceedings  vacated,  and  the  execu- 
tion or  performance  of  the  judgment  or  order  be  allowed  to  be 
enforced  without  further  delay.  (Sec  17.  chap.  20,  Laws  1887, 
Dak.;  sec  18,  chap.  120.  Laws  1891,  N.  D.) 

Rev.  Stat.  Wis.  1878,  sec  3063. 

Consult  sees.  6231. 583a,  GompL  Lavs;  sees.  5621,  5623^  Bev.  Godes,  N.  D. 

Pnaign  of  this  Section— Veglect.  This  section  is  onlj  designed  to 
meet  cases  where  a  sureij  ODce  accepted  has  snbsequentlj  become  insiAvait. 

Winton  v.  Kirbv  et  al, S.D ,  60  N.  W.  409.    Where  re^ondoithas 

neglected  to  except  to  such  suretiess  he  cannot  afterwards  in  this  ooort  ob- 
tain an  order  for  a  new  undertaking  apmi  a  showing  of  a  sanetf 'Is  irrespoosi- 
bility,  existing  and  known  to  respondent  when  the  undertaking  was  served. 
Id.    Elliott,  App.  Proc  sec  681;  Johnston  t.  King,  S3  Wis.  10,  53  N.  W.  28. 

Hew  Undertakings  AUowaUe,  When.  When  a  motion  to  dismiss  tiie 
appeal  is  made  in  tiieapoellate  ooort  on  the  ground  that  the  undertaking  filed 
is  insufficient,  and  the  appeal  appears  to  have  been  taken  in  good  faith,  the 
appellate  court  has  the  power,  and  it  is  its  duty,  to  permit  appellant  to  file  a 
new  undertaking,  upon  such  terms  as  may  be  just,  and  when  such  undertak- 
ing is  filed,  to  deny  the  motion  to  dismiss  the  appeal.  Towle  T.  Bradley,  S 
S.  D.  472,  50  N.  W.  1067;  Howard  v.  Harman.  5  CaL  78;  Coulter  t.  Stark,  7 
CaL  244;  Billings  v.  Boadhouse,  5  Gal.  71;  Cunningham  t.  Hopkins,  8  CaL 
34.  These  views  do  not  conflict  with  the  views  expressed  by  this  court  in 
Rudolph  T.  Herman,  2  S.  D.  399,  50  N.  W.  833.  Tbwle  v.  Bradley,  supra. 
TnawHirient  Aflldavit — Additional  Ahstnut.  When  respondent  daima 
that  the  affidavit  to  the  undertaking  on  appeal  is  insufficient  in  form,  it  is 
proper  practice  to  bring  the  same  before  this  court  by  an  additional  abstract. 

T<^ert<»  &Stets<»Co.  v.  Casperson, S.  D.    ,  63  N.  W.  908.    la- 

fiHhitiial  Undertaking — "Hew  One.  An  affidavit  to  an  undertaking  on  ap- 
peal that  does  not  substantially  comply  with  the  provisions  of  sec  5833, 
Comp.  Laws,  renders  the  undertaking  ineffectual  as  an  undertaking  on  ap- 
peaL  This  court,  upon  a  proper  showing,  and  upcm  such  terms  as  may  be 
jost,  is  authorized  to  permit  a  new  and  soflhaoit  undertaking  to  be  filed  in 
this  court,  where  the  original  undertaking  dfws  not  comply  with  sec.  5232. 

TWlertoo  &  Stetson  Co.  v.  Casperson,  ...     S.   D.    63  N.  W.  908;    HeT- 

den  V.  Helden,  9, Wis.  50S;  Fislk  v.  Goldberg,  4-5  WisL  9L^ 

UHDERJAKING—OUE  lUfSTRUMEMT  OR  SEVERAL— FIUHG  AMD 
SERVING— FIXING  AMOUNT— PRACTICE.  §  5231  Comp.  Laws;  § 
5621  Rev.  Codes  N.  D.  The  undertaking  required  by  this  act 
may  be  in  one  instrument  or  several,  at  the  option  of  the  appel- 
lant; the  original  must  be  filed  with  the  notice  of  the  appeal. 


OF  APPEALS  IN  CIVIL  ACTIONS.  227 

and  a  copy  showing  the  residence  of  the  sureties  must  be  served 
with  the  notice  of  appeal.  When  the  sum  or  effect  of  any  under- 
taking is  required  under  the  foregoing  provisions  to  be  fixed  by 
the  court  or  judge,  at  least  twenty-four  hours'  notice  of  the  ap- 
plication therefor  shall  be  given  the  adverse  party.  When  the 
court,  or  the  judge  thereof,  from  which  the  appeal  is  taken,  or 
desired  to  be  taken,  shall  neglect  or  refuse  to  make  any  order 
or  direction  not  wholly  discretionary,  necessary  to  enable  the 
appellant  to  stay  proceedings  upon  an  appeal,  the  supreme 
court,  or  one  of  the  justices  thereof,  shall  make  such  order  or 
direction.  (Sec.  18,  chap,  20,  Laws  1887,  Dak.;  sec.  18,  chap. 
120,  Laws  1891,  N.  D. ) 

Rev.  Stat.  Wis.  1878,  sec.  3064. 

Sec.  420,  423,  C.  C.  P.;  Levisee  p.  124,  125;  Wait's  Code  §  340,  343; 
Harst  Pr.,  Deer.  Code,  §  947,  948. 

Consult  sees.  5226,  5232,  5235,  Comp.  Laws;  sees.  5616,  5622,  5623,  Rev. 
Ct^es,  N.  D. 

Undertaking  and  Notice  Served  on  Attorney,  This  section  pro- 
vides: "The  original  (undertaking)  must  be  filed  with  the  notice  of  appeal 
and  the  copy  *  *  *  must  be  served  with  the  notice  of  appeal."  Construing 
this  section,  together  with  sec.  5215  and  sec.  5336,  Comp.  Laws,  it  would  seem 
that  when  the  adverse  party  has  an  attorney  of  record,  the  notice  of  appeal 
and  undertaking  should  be  served  upon  such  attorney.  Such  seems  to  have 
been  the  view  taken  by  the  supreme  court  of  California  under  quite  similar 

provisions  of  the  code  of  that  state.     McKittrick  v.  Pardee, S.  D , 

65  N.  W.  23;  Abrahms  v.  Stokes,  39  Cal.  150.  Undertaking  Executed  Be- 
fore Appeal,  Valid.  The  fact  that  an  undertaking  such  as  is  required  un- 
der this  section,  reciting  that  appellant  "hereby  intends  to  appeal"  was  ex- 
ecuted and  filed  more  than  three  months  before  the  notice  of  appeal  did  not 
invalidate  it,  where  a  copy  of  it  was  served  with  the  notice  of  appeal,  and 
the  original  was  refiled  with  such  notice.  Pierce  et  al  v.  Manning,  1  S.  D. 
306,  47  N.  W.  295.  Not  Applicable  to  Appeal  from  Justice.  Sec.  5232, 
Comp.  Laws,  does  not  apply  to  ^sureties  on  an  appeal  from  justice's  court  to 
the  county  court,    Towle  v.  Bradley,  2  S.  D.  472,  50  N.  W.  1057. 

AFFIDAVIT  OF  SURETIES— EXCEPTION  TO-JUSTIFICATION.  § 
5232  Comp.  Laws;  §  5622  Rev.  Codes  N.  D.  An  undertaking 
upon  an  appeal  shall  be  of  no  effect  unless  it  be  accompanied 
by  the  affidavit  of  the  sureties,  in  which  each  surety  shall  state 
that  he  is  worth  a  certain  sum  mentioned  in  such  affidavit,  over 
and  above  all  his  debts  and  liabilities,  in  property  within  this 


228  CODE  OF  CIVIL  PROCEDURE. 


state  not  by  law  exempt  from  execution,  and  which  sum  so 
sworn  to  by  such  sureties  shall,  in  the  aggregate,  be  double 
the  amount  specified  in  said  undertaking.  The  respondent 
may,  however,  except  to  the  sufficiency  of  the  sureties  within 
ten  days  after  such  notice  of  the  appeal,  and  unless  they  or 
other  sureties  justify  in  the  same  manner  as  upon  bail  on  ar- 
rest within  ten  days  thereafter,  the  appeal  shall  be  regarded  as 
if  no  undertaking  had  been  given.  The  justification  shall  be 
upon  a  notice  of  not  less  than  five  days.  (Sec.  19,  chap.  20, 
laws  1887,  Dak. ) 

[Sec.  5622,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  for  the  words 
"upon  bail  on  arrest,"  the  words  "as  bail  upon  an  arrest"  are  substituted. 
(Sec.  20,  chap.  120,  Laws  1891  N.  D.)] 

Rev.. Stat.  Wis.  1878,  sec.  3065. 

Sec.  421,  C.  C.  P.;  Levisee,  p.  124;  Wait's  Code,  sec.  341;  Harst  Pr. 
Deer.  Code  §  948. 

For  proceeding's  upon  bail  on  arrest  see  sees.  4959,  to  4962,  Comp.  Laws; 
sees.  163  to  166,  C.  C.  P.;  Levisee,  p.  47,  48;  Wait's  Code.  sec.  193  to  196, 
Harst  Pr.    Deer.  Code,  sees.  493  to  496. 

Attorney  Cannot  be  Svirety— Scope  of  Statute.  Section  469, 
Comp.  Laws,  providing  that  "no  practicing  attorney  and  counselor 
shall  be  a  surety  in  any  suit  or  proceeding  which  may  be  instituted 
in  any  of  the  courts  of  this  territory,"  applies  to  all  suits  and  proceedings 
pending  in  the  courts  of  this  state,  and  is  not  limited  to  those  with  which 
an  attorney  may  be  connected  in  his  professional  capacity.  Towle  v.  Brad- 
ley, 2'  S.  D.  472,  60  N.  W.  1057;  Gilbank  v.  Stephenson,  30  Wis.  156; 
Cothren  v.  Connaughton,  24  Wis.  137;  Schuek  v.  Hagar,  24  Minn.  341. 
Held,  further,  that  the  statute  deprives  an  attorney  of  the  legal  power  of 
ability  to  become  a  surety  in  any  suit  or  proceeding;  that  it  is  not  a  person- 
al privilege  which  an  attorney,  or  a  party  to  the  action  in  which  an  attorney 
executes  an  undertaking  as  surety,  may  waive,  but  on  grounds  of  public 
policy  the  statute  intends  to  and  does  disqualify  him  absolutely  from  enter- 
ing into  any  such  contract.  Towle  v.  Bradley,  supra.  Neglect  to  Except 
— Waiver.  If  respondent  deliberately  neglect  to  avail  himself  of  the  oppor- 
tunity afforded  under  sec.  5232,  Comp.  Laws,  to  except  to  the  sufficiency  of 
the  sureties,  he  will  be  held  to  have  accepted   such   sureties  as  sufficient. 

Winton  v.  Kirby  et  al S.  D 60  N.  W.  409;  Elliott  App.  Proc.  sec. 

684;    Johnston  v.  King,  83  Wis.  10,  53  N.  W.  28. 

PERFECTING  APPEAL  STAYS  PROCEEDINGS— POWER  OF  COURT 
BELOW.  §  5233  Comp.  Laws;  §  5623  Rev.  Codes  N.  D.  When- 
ever an  appeal  shall  have  been  perfected  and  the  proper  under- 


OF  APPEALS  IN  CIVIL  ACTIONS.  229 

taking  given,  or  other  act  done  prescribed  by  this  act  to  stay 
the  execution  or  performance  of  the  judgment  or  order  ap- 
pealed from,  all  further  proceedings  thereon  shall  be  thereby 
stayed  accordingly,  except  that  the  court  below  may  proceed 
upon  any  other  matter  included  in  the  action,  not  affected  by 
the  judgment  or  order  appealed  from  and  except  that  the  court  or 
presiding  judge  thereof  may  order  perishable  property,  held 
under  the  judgment  or  order  appealed  from,  to  be  sold,  and  the 
proceeds  paid  into  the  court  to  abide  the  event,  (Sec.  20,  chap. 
20,  laws  1887,  Dak.;  sec.  21,  chap,  120,  laws  1891,  N,  D,) 

Rev.  Stat.  Wis.  1878,  gee.  3066. 

Sec.  419,  422,  C.  C,  P.;  Levisee  p.  124;  Wait's  Code,  §339,  342;  Harst. 
Pr.,  Deer.  Code,  sec.  946,  949. 

Consult  sec.  5235,  Comp.  Laws,  sec.  5625,  Rev,  Codes,  N.  D, 

Entry  of  Judgement  After  Stay — Error — "Proceedings."  It  is  error 
to  enter  judgment  in  a  case  when,  after  verdict,  a  stay  of  all  proceedings 
has  been  ordered,  if  entry  of  judgment  was  within  the  time  in  which  the 
order  is  operative.  Uhe  v.  Chi.,  M.  &  St.  P.  Ry.  Co.,  3  S.  D.  563,  54  N.  W. 
601,  (affirmed  on  rehearing,  4  S.  D,  505,  57  N.  W,  484.)  In  passing  upon 
the  meaning  of  the  word  "proceeding,"  the  court  in  this  case  quote  with  ap- 
proval the  following  definition,  found  in  Morewood  v.  HoUister,  6  N.  Y.  319: 
"The  term  proceedings,  in  its  more  general  sense  in  law,  means  all  the 
steps  or  measures  adopted  in  the  prosecution  or  defense  of  an  action."  Cit- 
ing also,  Gordon  v.  State,  4  Kan.  501;  Bouvier,  Law  Die,  vol.  2,  p.  340;  And, 
Law  Die.  816;  Yeager  v.  Wright,  112,  Ind.  235,  13  N.  E.  707,  Payment  of 
Money — Time  for  Extended — Modifying  Judgment,  Where  a  time  is 
prescribed  within  which  money  must  be  paid  to  entitle  a  party  to  the  bene- 
fit of  the  judgment,  the  court  may,  even  after  such  time  has  expired,  extend 
it  by  a  modification  of  the  judgment  in  furtherance  of  justice;  and  it  may 
modify  a  judgmetit  directing  payment  to  be  made  to  a  party  by  providing 
for  payment  to  the  clerk  of  court  for  the  benefit  of  such  party,  Tyler  v. 
Shea,  4  N.  D.  377,  61  N.  W.  469;  2  Dan.  Ch.  PI.  &  Pr.  (3rd  Am.  Ed.)  pp. 
1017,  1018;  Rauth  v,  R.  R.  Co.  (Sup.  Ct.  N.  Y.)  23  N.  Y.  Supp.  750;  Conk- 
lin  V.  R.  R.  Co.  (Sup.)Ct.  N  .Y.  Supp.  782,  3Freem.  Judgm,  sec.  70;  Genet  v. 
Canal  Co.  113  N.  Y.  475,  21  N.  E.  390;  Jones  v.  Davenport  (N,  J.  Ch.)  17 
Atl.  570. 

Amending  Record— Power  of  Trial  CoTirt  After  Argument  Above. 
When  upon  appeal  from  district  court,  the  original  papers  are  sent  to  su- 
preme court,  and  when  the  case  has  been  fully  argued  and  submitted  in  this 
court  upon  such  record,  the  trial  court  has  thereafter  no  authority  or  power 
to  amend  or  correct  such  record,  unless,  upon  application  to  this  court,  the 
record  is  remanded  for  such  purposes,     Moore  v,  Booker  et,  4  N,  D.  543,  62 


230  CODE  OF  CIVIL  PROCEDURE. 

N.  W.  607  (on  rehearing);  Levi  v.  Karrick,  15  Iowa,  444;  Carmichael  v. 
Vandeburr,  51  Iowa,  225,  1  N.  W.  477;  Perry  v.  Breed,  117  Mass.  155;  Pen- 
rice  v.  Wallis,  37  Miss.  172;  Keyserv.  Farr,  105  U.  S.  265;  State  v.  Jack- 
son (N.  C),  16  S.  E.  906;  Elliott,  App.  Proc.  sec.  205.  The  court,  in  Moore 
V.  Booker,  supra,  after  citing  with  approval  the  above  cases,  say:  "From 
these  authorities  it  appears  that,  while  in  some  jurisdictions  the  record  re- 
maining in  the  trial  court  may  be  amended  or  corrected  by  the  trial  court 
after  an  appeal  is  perfected,  yet  the  prevailing  doctrine  would  seem  to  deny 
any  power  in  the  trial  court  to  change  the  record  in  any  manner  that  would 
affect  the  disposition  of  the  case  in  the  appellate  court,  without  an  applica- 
tion to  the  appellate  court  to  have  the  record  remanded  for  amendment  or 
correction.  The  facts  of  this  case  require  us  to  go  no  further  than  to  hold 
that  when,  upon  an  appeal  to  this  court,  the  original  papers  are  sent  up, 
and  when  the  case  has  been  argued  and  submitted  upon  the  record  as  thus 
sent  to  this  court,  the  trial  court  has  thereafter  no  power  to  amend  or  cor- 
rect the  bill  of  exceptions  as  contained  in  the  record,  unless,  upon  applica- 
tion to  this  court,  the  bill  is  remanded  for  that  purpose." 

DAMAGES— REFERENCE  BELOW  AFTER  DECISION— WHAT 
DEEMED  BREACH  OF  UNDERTAKING.  §  5234  Comp.  Laws;  §  5624 
Rev.  Codes  N.  D.  When  the  amount  of  damages  to  be  paid  by 
the  appellant  on  affirmance  of  the  judgment  or  order  appealed 
from,  pursuant  to  any  undertaking,  is  not  fixed  by  the  judg- 
ment or  decision  of  the  supreme  court  on  the  appeal,  the  dis- 
trict court  may,  after  the  remittitur  of  the  record  from  the  su- 
preme court  is  filed,  order  a  reference  to  ascertain  such  dam- 
ages, the  expense  of  which  shall  be  included  and  recoverable 
with  such  damages.  In  all  cases  a  neglect  for  the  space  of 
thirty  days  after  the  affirmance  on  appeal  of  a  judgment  direct- 
ing the  payment  of  money,  to  pay  the  amount  directed  to  be 
paid  on  such  affirmance,  shall  be  deemed  a  breach  of  the  un- 
dertaking on  such  appeal.  A  neglect  for  a  space  of  thirty  days 
after  the  confirmation  of  the  report  of  a  referee,  to  whom  a  ref- 
erence has  been  ordered  for  the  purpose  of  ascertaining  the 
damages  to  be  paid,  on  the  affirmance  of  any  other  judgment  or 
order  appealed  from,  to  pay  the  amount  of  damages  so  ascer- 
tained and  the  costs  of  such  reference,  shall  be  deemed  a  breach 
of  the  undertaking  on  such  appeal.  The  dismissal  of  an  appeal 
or  writ  of  error  by  the  appellant  or  plaintiff  in  error,  or  by  the 
court  for  want  of  prosecution,  unless  the  court  shall,  at  the  time, 


OF  APPEALS  IN  CIVIL  ACTIONS.  231 


otherwise  expressly  order,  shall  render  the  sureties  upon  any 
undertaking  or  bond,  given  under  this  act,  liable  in  the  same 
manner  and  to  the  same  extent  as  if  the  judgment  or  order  ap- 
pealed from,  or  the  judgment  brought  up  on  error  had  been 
affirmed.     (Sec,  21,  chap.  20,  Laws  1887,  Dak.) 

[Sec.  5624,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  in  lieu  of  the 
words  "for  a  space  of  thirty  days  after  the  confirmation",  etc.,  it  reads  "for 
the  space  of  sixty  days",  etc.;  an^  the  last  sentence  in  the  N.  D.  section  reads: 
"The  dismissal  of  an  appeal  by  the  appellant  or  by  the  court  for  want  of  prose- 
cution, unless  the  court  shall  at  the  time  otherwise  expressly  order,  shall  ren- 
der the  sureties  upon  the  undertaking-  or  bond  given  under  this  chapter  lia- 
ble in  the  same  manner  and  to  the  same  extent  as  if  the  judgment  or  order 
app)ealed  from  had  been  affirmed."    (Sec.  22,  chap.  120,  Laws  1891,  N.  D.)] 

Rev.  Stat.  Wis.  1878,  sec.  3067. 

Surety — Principal  Holding'  Other  Security — Resort  Thereto.  It  is 
no  defense  to  an  action  against  sureties  on  an  appeal  undertaking  that  plain- 
tiff holds  security  amply  sufficient  to  pay  the  claim  for  which  the  sureties 
have  become  bound,  and  that  plaintiff  has  refused  on  demand  to  resort  to  such 
security  for  payment,  there  being-  no  proof  that  the  sureties  were  prejudiced 
by  such  refusal.  Bingham  v.  Mears  et  al,  4  N.  D.  437,  61  N.  W.  808;  1 
Brandt  Sur.,  sec.  97,  237;  Fuller  v.  Loring-,  42  Me.  481;  Thorn  v.  Pinkham, 
84  Me.  101,  24  Atl.  718;  Morrison  v.  Bank,  65  N.  H.  253,  20  Atl.  300;  Aber- 
crombie  v.  Knox,  3  Ala.  728;  Allen  v.  Woodward,  125  Mass.  400;  Jones  v. 
Tincher,  15  Ind.  308;  Brick  v.  Banking  Co.,  37  N.  J.  Law  307;  Buck  v.  San- 
ders, 1  Dana  187;  Day  v.  Elmore,  4  Wis.  190;  Penn  v.  Ingles,  82  Va.  65;'  Da- 
vis V.  Patrick,  6  C.  C.  A.  632,  57  Fed.  909;  Callahan  v.  Mitchell,  29  Ind.  419; 
Aultman  v.  Smith,  52  Mo.  App.  351;  24  Am.  &  Eng.  Ency.  Law,  p.  799  and 
cases  cited;  Burge  Sur^  341;  Hayes  v.  Ward,  4  Johns.  Ch.  123.  Whether  a 
surety  may  not,  under  exceptional  circumstances,  compel  a  creditor  to  ex- 
haust collateral  security  being  suing  him,  not  decided,  Bingham  v.  Mears 
et  al,  supra. 

AMENDMENT  TO  PERFECT  APPEAL— MISTAKE  OR  ACCIDENT. 
§  5235  Comp.  Laws;  §  5625  Rev.  Codes  N.  D.  When  a 
party  shall  in  good  faith  give  notice  of  appeal,  and  shall 
omit,  through  mistake  or  accident,  to  do  any  other  act 
necessary  to  perfect  the  appeal  or  make  it  effectual,  or  to  stay 
proceedings,  the  court  from  which  the  appeal  is  taken,  or  the 
presiding  judge  thereof,  may  permit  an  amendment,  or  the 
proper  act  to  be  done  on  such  terms  as  may  be  just.  (Sec.  22, 
chap.  20,  Laws  1887,  Dak.,  sec.  23,  chap.  120.  Laws  1891,  N. 
D.) 

% 


232  CODE  OF  CIVIL  PROCEDURE. 

• — — — 

Rev.  Stat.  Wis.  1878,  sec.  3068. 

Consult  sees.  5230,  5231,  6232,  Cora  p.  Laws;  sees.  6620,  6621,  5622,  Rev. 
Codes,  N.  D.,  and  decisioi  s  thereunder. 

Lower  Covirt  Cannot  Amend  Record,  When.  When  the  case  has 
been  fully  argued  hero  on  api>eal  upon  the  original  papers,  and  submitted, 
the  trial  court  has  thereafter  no  authority  or  power  to  amend  or  correct  the 
record,  unless  upon  application  to  this  court  the  record  is  remanded  for  such 
purposes.  Moore  v.  Booker  et  al  (on  rehearing),  4  N.  D.  643,  62  N.  W.  607, 
and  cases  there  cited;  (see  said  cited  cases,  under  sec.  6233,  Comp.  Laws,  su- 
pra). IneflFectual  Appeal — New  Affidavit.  An  affidavit  to  an  undertaking 
that  does  not  substantially  comply  with  sec.  6232,  Comp.  Laws,  renders  the 
undertaking  ineffectual  on  appeal.     Tolerton  &  Stetson  Co.  v.  Casperson, 

S.  D ,63  N.W.  908.   Where  the  defect  was  evidently  made  through 

mistake  or  accident,  as  in  this  case,  we  are  of  opinion  that  under  the  liberal 
provisions  of  sec.  5236,  Comp.  Laws,  appellant  should  be  permitted  to  file  a 
new  undertaking.  Id.;  Helden  v.  Helden,  9  Wis.  508;  Falk  v.  Goldberg,  45 
Wis.  94.  Undertaking — Appeal  from  Justice — Omitted  Condition.  On 
appeal  to  this  court  from  an  order  of  district  court  dismissing  appeal  to  that 
court  from  justice's  court,  held,  that  the  fact  that  the  undertaking  on  appeal 
from  justice's  court  omits  the  condition  binding  appellant  to  obey  any  order 
of  district  court,  in  case  it  should  dismiss  the  appeal  or  affirm  the  judgment 
(J.  C.  sec.  93),  does  not  warrant  the  district  court  in  dismissing  the  appeal, 
where  appellant  offers  to  amend  the  undertaking  by  inserting  such  condi- 
tion.    Keehl  v.  Schaller,  6  Dak.  499,  60  N.  W.  196. 

APPEALABLE  ORDERS— ENTRY,  FOR  APPEAL  §  5236  Comp. 
Laws;  §  5626  Rev.  Codes  N.  D.  The  following  orders, 
when  made  by  the  court,  may  be  carried  to  the  supreme  court: 

1.  An  order  affecting  a  substantial  right,  made  in  any  ac- 
tion, when  such  order  in  effect  determines  the  action  and  pre- 
vents a  judgment  from  which  an  appeal  might  be  taken. 

2.  A  final  order  affecting  a  substantial  right,  jnade  in  spe- 
cial proceedings,  or  upon  a  summary  application  in  an  action 
for  judgment. 

3.  When  an  order  grants,  refuses,  continues  or  modifies  a 
provisional  remedy,  or  grants,  refuses,  modifies  or  dissolves  an 
injunction;  when  it  sets  aside  or  dismisses  a  writ  of  attachment 
for  irregularity;  when  it  grants  or  refuses  a  new  trial;  or  when 
it  sustains  or  overrules  a  demurrer. 

4.  When  it  involves  the  merits  of  an  action  or  some  part 
thereof;  when  it  orders  judgment  on  application  therefor,  on 
account  of  the  frivolousness  of  a  demurrer,  answer  or  reply,  or 


OF  APPEALS  IN  CIVIL  ACTIONS.  233 

strikes  off  such  demurrer,  answer  or  reply  on  account  of  the 
frivolousness  thereof. 

5.  From  orders  made  by  the  district  (circuit)  coiirt,  va- 
cating or  refusing  to  set  aside  orders  made  at  chambers,  where, 
by  the  provisions  of  this  act,  an  appeal  might  have  been  taken, 
in  case  the  order  so  made  at  chambers  had  been  granted  or  de- 
nied by  the  district  (circuit)  court  in  the  first  instance.  For 
the  purposes  of  an  appeal  from  an  order,  either  party  may  re- 
quire the  order  to  be  entered  by  the  clerk  of  record,  audit  shall 
be  entered  accordingly.     (Sec.  23,  chap.  20,  Laws  1887,  Dak.) 

[Sec.  5626,  Rev.  Codes,  N.  D.,  is  the  same,  down  to  subd.  5,  which  is  as 
follows:  "Orders  made  by  the  district  court  or  judge  thereof  without  notice 
are  not  appealable;  but  orders  made  by  the  district  court  after  a  hearing  is  had 
upon  notice  which  vacate  or  refuse  to  set  aside  orders  previously  made  with- 
out notice  may  be  appealed  to  the  supreme  court  when  by  the  provisions  of 
this  chapter  an  appeal  might  have  been  taken  from  such  order  so  made 
without  notice,  had  the  same  been  made  upon  notice."  (Sec.  24,  chap.  120, 
Laws  1891;  sec.  1,  chap.  83,  Laws  1893,  N.  D.)] 

Rev.  Stat.  Wis.  1878,  sec.  3069. 

Sec.  22,  425C.C.  P.;  Levisee  p.  5, 6,  125;  Wait's  Code  §  11,  457;  Harst. 
Pr.  Deer.   Code    §  963. 

Consult  sees.  5213,  5214,  5216,  Com  p.  Laws;  sees.  5603,  5604,  5605,  Rev. 
Codes,  N.  D.;  Rula  27,  Sup.  Ct.  S.  D.;  Rule  32,  Sup.  Ct.  N.  D.  Post. 

Generally. 

Denying  Motion  to  Set  Aside  Service — Not  Appealable.  An  order 
denying  a  motion  to  set  aside  the  service  of  a  summons  is  not  within  either 
provision  of  sec.  5236,  Comp.  Laws,  and  is  not  appealable.  Ryan  v.  Daven- 
port, 5  S.  D.  203,  68  N.  W.  568;  Orton  v.  Noonan,  32  Wis.  104;  Rahn  v.  Gun- 
nison, 12  Wis.  528;  Haynes  on  New  Tr.  &  App.,  188,  and  cases  there  cited. 
Hefusing  to  "Vacate  Judgment — Presumption  From  Abstract.  Upon  ap- 
peal from  an  order  refusing  to  vacate  a  judgment  against  appellant,  and  to 
allow  him  to  defend,  it  was  objected  by  respondent  that  the  abstract  fails  to 
show  that  the  judgment  was  ever  entered,  and  that  until  that  is  done  the  or- 
der is  not  appealable.  Held,  that  where  the  abstract  sets  out  such  matter, 
not  jurisdictional,  as  could  only  be  gathered  from  a  duly  authenticated  rec- 
ord, it  will  be  construed  as  claiming  that  the  record  was  duly  authenticated, 
and  in  absence  of  denial  such  facts  will  be  considered  as  admitted.     Searles 

V.  Christensen, S.  D ,  60  N.    W.  29;  Mercantile  Co.  v.  Faris,  5  S.  D. 

348. 

SUBDIVISION  1. 

Consult  decisions  under  following  subdivisions. 


234  CODE  OF  CIVIL  PROCEDURE. 

(a).     Appealable  Orders. 

Presumably  a  Court  Order,  When— Final  Judgment.  An  order 
made  by  a  circuit  judge  within  his  circuit,  in  an  action  tried  without  a  jurj', 
is  presumably  a  court  order  and  not  a  judge's  order,   unless   the  contrary 

clearly  appears.     Lawrence  Co.  v.  Meade  Co S.  D ,62  N.   W.  957; 

Evans  v.  Bradley,  4  S.  D.  83,  55  N.  W.  721.  Said  order  is  appealable.  Id. 
An  order  reciting  at  its  close:  "And,  the  court  being  fully  advised  in  the 
preraisee,  it  is  ordered  and  adjudged  that  said  objection  be  sustained,  and 
the  complaint  herein  be  dismissed,  with  costs."  etc., — is  a  final  judgment. 
Lawrence  Co.  v.  Meade  Co S.  D ,  62  N.  W.  957.  Certiorari— Re- 
fusing to  Set  Aside  Order— Second  Execution  Sale — Mechanic's  Liens. 
On  certiorari  to  this  court  for  purpose  of  having  reviewed  the  question  of 
jurisdiction  of  the  circuit  court  to  order  a  second  sale  of  certain  premises, 
which  had  once  been  sold  under  foreclosure  of  mechanic's  liens,  where  peti- 
tioner, assignee  of  the  certificate  of  such  former  sale,  had  commenced  an 
action  upon  an  indemnity  undertaking  given  by  former  owner,  ot  the 
property,  and  their  sureties,  to  p'rotect  petitioner  from  such  liens,  in  which 
action  the  defense  that  the  property  had  been  conveyed  to  petitioner  in  con- 
sideration of  satisfaction  of  petitioner's  bond  and  mortgage  for  a  loan  on  the 
property,  and  of  payment  by  it  of  said  liens,  was  interposed,  and  the  action 
dismissed;  whereupon  holders  of  certain  liens  which  had  been  adjudicated 
but  not  satisfied,  applied  for  execution,  which  was  ordered  issued,  and 
which,  upon  application  of  petitioner,  the  court  refused  to  set  aside,  which 
order  occasioned  application  for  this  writ;  Held,  that  it  is  not  clear  that 
the  order  in  question  was  not  appealable,  as  one  affecting  a  substantial 
right,  made  upon  a  summary  application  after  judgment.     American  Sav. 

&  Loan  Ase'n.  v.  Campbell,  Judge, S.  D ,  65  N.  W.  815;  Carney  v. 

R.  R.  Co.  15  Wis.  503;  Jessup  v.  Bank,  Id.  604.  Refusing  to  Vacate  Judg- 
ment—Evidence in  Abstract.  Where,  on  appeal  from  an  order  of  the 
county  court  refusing  to  vacate  a  judgment  and  allowing  appellant  to  de- 
fend, respondent  claims  the  abstract  does  not  show  that  the  order  appealed 
from  was  ever  entered  by  the  clerk,  the  abstract  will  be  considered  as 
claiming  that  the  record  was  properly  authenticated,  where  it  sets  out  such 
matter,  not  jurisdictional,  as  could  only  be  gathered  from  an  authenticated 

record,  in  absence  of  any  denial  of  such  facts.     Searles  v.   Christensen, 

S.  D ,60N.  W.  29;  Mercantile  Co.  v.  Faris,   5  S.    D.    248,   58  N.   W. 

813. 

(b).     Non-Appealable  Orders. 

Refusing  Application  For  Judgment— Eflfect  Of.  An  order  of  the  dis- 
trict court  refusing  an  application  for  judgment  upon  findings  of  a  jury  is  not 
appealable  under  subd.  1  of  this  section;  such  order  neither  determines  an  ac- 
tion nor  any  issue  in  an  action,  nor  is  it  the  legal  effect  of  such  an  order  to 
prevent  entry  of  an  appealable  judgment.     For  reasons  which  meet  with  our 


OF  APPEALS  IN  CIVIL  ACTIONS.  235 

full  approval,  the  holdings  of  the  Wisconsin  court  have,  without  exception, 
been  against  the  appealibility  of  such  orders.  Persons  et  al  v.  Simons, 
Sheriff,  1  N.  D.  243,  46  N.  W.  969;  Murray  v.  Scribner  (Wis.),  35  N.  W.  311; 
School  District  v.  Kemen  (Wis.),  32  N.  W.  42;  Treat  v.  Hiles  (Wis.)  44  N. 
W.  1088.  Such  order  is  not  rendered  appealable  by  a  previous  denial  of 
defendant's  application  for.  judgment  on  the  findings.  Persons  v.  Simons, 
supra.  See  Travelers'  Ins.  Co.  v.  Mayer,  2  N.  D.  234,  50  N.  W.  706.  Re- 
fusing- to  Vacate  Appealable  Order— Time  For  Appeal.  This  court  will 
not  review  an  order  of  the  circuit  court  refusing  to  vacate  an  appealable  or- 
der therefore  made  by  such  court,  and  which  it  had  jurisdiction  to  make. 
Vert  V.  Vert,  3  S.  D.  619,  54  N.  W.  655.  To  review  such  order  would  be  in 
effect  to  pass  upon  the  merits  of  the  first  order,  and  the  time  for  an  appeal 
from  and  review  of  the  first  order  cannot  be  thus  extended.  Id.  Thompson  v. 
Lynch,  43  Cal.  482;  Ins.  Co.  v.  W^eber,  2  N.  D.  239,  50  N.  W.  703. 

Judge's  Order,  What  is — Appeal— Duplicity.  Where  under  the 
statute  a  judge,  as  distinguished  from  the  court,  has  power  to  make  a  cer- 
tain order,  and  it  is  evident  that  the  judge  intended  to  make  it  as  his  and 
not  the  court's  order,  it  will  be  here  regarded  as  made  by  the  judge,  not  by 
the  court;  and  such  order  is  not  appealable.  An  appeal  from  a  subsequent 
order  of  court  refusing  to  set  aside  such  judge's  order,  and  also  from  such 
first  or  judge's  order  in  one  notice,  will  not  be  dismissed  for  duplicity. 
Brown  et  al  v.  Edmunds  et  al,  5  S.  D.  508,  59  N.  W.  731;  Black  Hills  F.  & 
M.  Co.  V.  Grand  Island  &  W.  C.  R.  Co.,  2  S.  D.  546,  51  N.  W.  342.  Order 
Dismissing  Action,  Must  be  Entered.  An  order  of  the  district  court  dis- 
missing an  action  for  jurisdictional  reasons,  will  authorize  the  clerk  of  the 
district  court  to  enter  judgment,  but  such  an  order  does  not  itself  constitute 
a  judgment,  and  is  not  a  final  determination  of  any  question.  An  order  of 
dismissal,  entered  in  the  minutes  of  the  court  or  recorded  in  an  "Order 
Book,"  or  written  out,  signed  by  the  judge,  and  filed,  is  still  an  order,  and 
does  not  constitute  a  final  determination  or  final  judgment,  and  is  not  ap- 
pealable. In  re  Weber,  4  N.  D.  119,  59  N.  W.  523;  Hayne  New  Tr.  & 
App.  p.  555;  Lamb  v.  McCanna,  14  Minn.  513  (Gil.  385);  Hodginsv.  Heaney, 
15  Minn.  185  (Gil.  142);  Thorp  v.  Lorenz  (Minn.),  25  N.  W.  712;  Mouser  v. 
Palmer,  2  S.  D.  466,  50  N.  W.  967;  Brady  v.  Burke  (Cal.),  27  Pac.  52.  No 
appeal  will  lie  from  an  order  of  the  district  court  dismissing  an  action  orig- 
inating in  that  court  or  an  appeal  from  a  justice  court  for  jurisdictional 
reasons.  It  is  not  appealable  under  the  first  subdivision  of  sec.  24,  chap. 
120,  laws  1891.  The  order  is  authority  for  entry  of  judgment;  hence  it  does 
not  "prevent  the  entry  of  a  judgment  from  which  an  appeal  might  be  tak- 
en." In  re  Welder,  4  N.  D.  119,  59  N.  W.  523,  and  above  cases  there  cited. 
Same  -  Dismissal  For  Want  of  Jurisdiction.  Where  an  action  is  dis- 
missed in  district  court  for  want  of  jurisdiction,  sec.  5194,  Comp.  Laws,  ex- 
pressly authorizes  judgment  for  costs;  and  the  right  to  enter  judgment  for 


236  COt)E  OF  CIVIL  PROCEDURE, 

costs  depends  upon  the  validity  of  the  dismissal,  and  this  court  on  appeal 
from  such  a  judgment  will  review  the  dismissal  upon  the  merits,  as  well  as 
any  question  touching  costs  properly  arising  ujwin  the  record.  Bartholomew, 
C.  J.,  dissenting.  In  re  Weber,  4  N.  D.  119,  5S)  N.  W.  523;  Gould  v.  Ele- 
vator Co.,  3  N.  D.  96,  54  N.  W.  316. 

For  Delivery  of  Attached  Property  to  Assignee-  Certiorari — "Ac- 
tion"— "Special  Proceeding."  After  an  assignee  for  benefit  of  creditors 
had  taken  possession  of  the  assigned  goods,  relator,  a  creditor  of  assignor, 
commenced  an  action  against  the  assignor,  in  which  action  an  attachment  was 
levied  on  the  property;  whereupon,  on  application  of  the  assignee,  the  dis- 
trict judge,  without  notice,  ordered  the  sheriff  to  deliver  the  property  to 
the  assignee,  and  that  the  latter  hold  It  or  the  proceeds  of  It  until  the  valid- 
ity of  the  attachments  could  be  oetermlned.  Held,  the  order  was  not  made 
in  any  action  or  special  proceeding  pending  before  the  lower  court  and  is 
not  appealable.  It  was  granted  upon  the  mere  affidavit  of  the  assignee, 
without  hearing  the  sheriff  or  the  plaintiff  in  attachment,  and  without  no- 
tice to  them,  and  Is  absolutely  void,  and  should  be  set  aside  on  certiorari. 
Nothing  said  by  this  court  In  Bank  v.  Freeman,  1  N.  D.  196,  46  N.  W.  36, 
conflicts  with  these  views.  State  ex  rel  Enderlln  State  Bank  v.  Rose,  Dis- 
trict Judge,  4  N.  D.  319,  58  N.  W.  514;  Starr  v.  Trustees,  6  Wend.  564;  Peo- 
ple V.  Judges  of  Suffolk  Co.,  24  Wend.  249;  2  Spell.  Extr.  Rel.  sec.  1911;  Cal- 
ifornia Pac.  R.  Co.  V.  Central  Pac.  R.  Co.,  47  Cal.  528;  LeGrand  v.  Falrall, 
(Iowa)  53  N.  W.  115;  Insurance  Co.  v.  Duffie  (Iowa),  25  N.  W.  117.  Con- 
tempt— When  Order  is  Not  Appealable.  An  order  punishing  a  person 
for  contempt  in  disobeying  an  Injunction,  where  the  proceeding  Is  not  usable 
as  a  remedy  to  enforce  obedience  to  the  Injunction  or  to  Indemnify  the  party 
Injured  by  the  contempt.  Is  not  an  order  made  In  an  action  or  special  pro- 
ceeding, and  Is  not  appealable.  State  ex  rel  Edwards  v.  Davis,  2  N.  D.  461, 
51  N.  W.  942;  State  v.  Giles,  10  Wis.  101;  In  re  Pierce,  44  Wis.  411-422; 
State  V.  Drophy,  38  Wis.  414;  In  re  Murphy,  39  Wis.  286;  5  Crlm.  Law  Mag. 
p.  652;  Yates  v.  Lansing,  9  Johns.  395;  Rap.  Contempt,  sec.  13;  State  v. 
Dist.  Court  (Minn.),  42  N.  W.  598;  People  v.  Court  of  Oyer  &  Terminer,  101 
N.  Y.  245,  4  N.  E.  259;  In  re  Chiles,  22  Wall.  157.  Final  Judgment— Entry 
by  Clerk.  Under  the  statutes  of  this  state,  a  final  judgment  does  not  be- 
come such,  in  district  court,  and  has  no  force  or  effect,  until  entered  by  the 
clerk  in  the  judgment  book.  In  re  Weber,  4  N.  D.  119,  59  N.  W.  523;  Rock- 
wood  V.  Davenport,  37  Minn.  533.  35  N.  W.  377;  Williams  v.  McGrade,  13 
Minn.  46  (Gil.  39);  Brown  v.  Hatheway,  10  Minn.  303  (Gil.  238);  Washburn 
V.  Sharpe,  15  Minn.  63  (Gil.  43);  Hodgins  v.  Heaney,  15  Minn.  185  (Gil.  142); 
Thompson  v.  Blckford,  19  Minn.  17  (Gil.  1);  Hunter  v.  Stove  Co.,  31  Minn. 
505,  18  N.  W.  645;  Gould  v.  Elevator  Co.,  3  N.  D.  96,  54  N.  W.  316;  Bowman 
v.  Tall  man,  28  How.  Pr.  482;  Knapp  v.  Roche,  82  N.  Y.  366. 

SUBDIVISION  2. 

Consult  decisions  under  subds.  1,  3,  4  ami  5. 


OF  APPEALS  IN  CIVIL  ACTIONS.  237 

(a).     Appealable  Orders. 

Vacating  Order  Vacating  Former  Order — Foreclosure  Sale.  Anor- 
dfir  vacating  an  order  which  vacated  a  former  order  setting  aside  a  sheriflf's 
sale  under  foreclosure  judgment  is  appealable,  as  affecting  a  substantial 
right  upon  a  summary  application  after  judgment.  Bailey  v.  Scott,  1  S.  D. 
387,  47  N.  W.  286.  Vacating  Judgment— "For  Judgment"— A  Clerical 
Error.  An  order  vacating  a  judgment  as  to  the  moving  defendant,  and  let- 
ting him  in  to  defend,  is  appealable  under  this  subdivision.  Weber  et  al  v. 
Tschetter  et  al,  1  S.  D.  205,  46  N.  W.  201.  The  phrase  "for  judgment"  in 
this  subdivision  should  read  "after  judgment",  the  word  "for"  having  been 
erroneously  substituted  for  "after"  in  copying  the  Wisconsin  statute.  Id. 
Refusing  Vacation  of  Appealable  Order — Rule  Applying.  The  rule  that 
an  order  refusing  to  set  aside  an  appealable  order  is  not  appealable  is  not 
imperative  where  the  first  order  is  plainly  and  obviously  made  without  jur- 
isdiction; so  held,  upon  an  appeal  from  an  order  refusing  to  set  aside  an  or- 
der requiring  a  defendant  to  pay  over  moneys  to  respondents,  made  in  a  pro- 
ceeding supplementary  to  execution.  Thompson  &  Sons  Mf'g  Co.  v.  Guen- 
thner  et  al,  5  S.  D.  504,  59  N.  W.  729.  Said  order  was  not  only  erroneous, 
but  void.  Id.  Bank  v.  Pugsley,  47  N.  Y.  368;  Bank  y.  Trapp,  21  How.  Pr. 
20;  People  v.  Hurlbut,  5  How.  Pr.  446;  Crounse  v.  Whipple,  34  How.  Pr. 
333;  Haggerman  v.  Tong  Lee,  12  Nev.  331;  Parker  v.  Page,  38Cal.  526;  Vert 
V.  Vert,  3  S.  D.  619,  54  N.  W.  655. 

(b).     Non-Appealable  Orders. 

Judgment — Irregular  Entry — Should  Move  to  Vacate.  Where 
judgment  is  irregularly  entered,  good  practice  requires  that  it  be  first  as- 
sailed by  motion,  and  the  order  made  on  such  motion  is  appealable,  under 
subd.  2,  sec.  5236,  Comp.  Laws.  Guar,  Scott  &  Co.  v.  Spaulding,  2  N.  D.  414, 
51  N.  W.  867;  Stocking  v.  Hanson,  22  Minn.  542;  Thomas  v.  Tanner,  14  How. 
Pr.  426;  3  Wait's  Pr.  668;  4  Id.  637;  Riiilroad  Co.  v.  Murphy,  19  Minn.  500 
(Gil.  433);  Covert  v.  Clark,  23  Minn.  539.  Contempt  Order— Special  Pro- 
ceeding. An  order  punishing  a  person  for  contempt  in  disobeying  an  in- 
junction, is  not  an  order  made  in  an  action  or  special  proceeding,  and  is  not 
appealable;  such  proceeding  being  not  remedial  but  criminal  in  its  nature. 
State  ex  rel  Edwards  v.  Davis,  2  N.  D.  461,  51  N.  W.  942.  Consent  Order 
for  Alimony — Discretion.  The  making  of  a  consent  order  for  temporary 
alimony  in  an  action  for  divorce,  will  not  be  reviewed  on  appeal  except  in 
case  of  abuse  of  discretion.  Grant  v.  Grant,  5  S.  D.  1,,  57  N,  W.  948.  To 
Show  Cause  in  Injunction— Chambers  Order.  An  order  to  show  cause 
why  an  order  of  injunction  should  not  be  made,  returnable  before  the  cir- 
cuit judge,  concluding  with  the  words  "done  in  chambers,"  and  reciting 
that  "the  judge  of  said  court"  had  considered  the  return,  is  an  order  of  the 
judge  and  not  of  the  court,  and  is  not  appealable  under  sec.  5236,  Comp. 
Laws.  Black  Hills  F.  &  M.  Co.  v.  Grand  Island  «&  W.  C.  R.  Co.,  2  S.  D.  546, 
51  N.  W.  342. 


238  CODE  OF  CIV^IL  PROCEDURE. 

Foreclosiire  by  Advertisement— Refusing  Vacation  of  Order  for 
Court  Proceedings -Discretion,  Where  several  orders  were  made  by  the 
district  court,  directing  discontinuance  of  foreclosure  proceedings  by  adver- 
tisement, and  requiring  further  proceedings  to  be  had  in  court,  such  orders, 
being  bused  on  satisfactory  affidavits,  are  valid.  Held,  further,  that  the 
remedy  given  by  the  proviso  of  sec.  6411,  Comp.  Laws,  is  merely  cumula- 
tive, and  not  to  be  classed  with  or  regulated  by  the  principles  of  law  and 
rules  of  practice  obtaining  in  civil  actions  in  which  equitable  relief  by  in- 
junction is  sought.  McCann  v.  Mortgage,  Bank  &  Investment  Co.;  Will- 
iamson V.  Same;  Halvorsan  v.  Same,  3  N.  D.  172,  54  N.  W.  1026.  Held,  fur- 
ther, that  the  proviso  in  said  sec.  5411  is  intended  to  confer  upon  judges  of  the 
district  courts  certain  authority,  exercisable  at  their  discretion,  and  such 
discretion  is  non-reviewable,  except  in  cases  of  abuse.  McCaun  v.  Mort., 
Bank  &  Invest.  Co.,  supra.  Nor  would  an  appeal,  in  our  judgment,  lie  in 
this  case  from  the  order  of  the  court  refusing  to  set  aside  the  judge's  order, 
under  subd.  3,  sec.  24,  ch.  120,  Laws  1891.  We  shall  not  pass  decisively  up- 
on the  appealability  of  the  oi'der  appealed  from  in  this  case,  further  than  to 
say  that  it  can  be  sustained,  if  at  all,  only  as  an  appeal  from  ''a  final  order 
affecting  a  substantial  right,  made  in  a  special  proceeding."    Id. 

Consult  State  ex  rel  Enderlin  State  Bank  v.  Rose,  Dist.  Judge,  4  N.  D. 
319,  58  N.  W.  514,  cited  under  sub.  1,  supra,  upon  the  question  as  to  what  is 
an  action,  and  a  special  proceeding. 

SUBDIVISION  8. 

Consult  Subd.  1,  2,  4  and  5  of  this  section. 

(a).     Appealable  Orders. 

Discharging,  etc.,  Attachment— Appeal  Before  Judgment.  An  or- 
der discharging,  continuing,  refusing  or  modifying  an  attachment  is  appeal- 
able under  this  subdivision,  and  may  be  taken  before  judgment  in  the  origin- 
al cause  of  action.  The  words  "when  it  sets  aside  or  dismisses  a  writ  of  attach- 
ment for  irregularity,"  do  not  restrict  the  rightof  appeal,  as  provided  in  the 
first  clause  of  the  section.  Quebec  Bank  v.  Carroll  et  al,  1  S.  D.  1,  44  N.  W. 
723;  Couldren  v.  Caughey,  29  Wis.  320;  Rice  v.  Jerenson,  54  Wis.  250,  11 
N.  W.  549;  Howell  v.  Kingsbury,  15  Wis.  299;  Wyman  et  al  v.  Wilmarth,  1  S. 
D.  35,  44  N.  W.  1151.  Consult  Pearson  v.  Post,  2  Dak.  220,9  N.  W.  684  (686.) 
Upon  an  appeal  from  an  order  discharging  an  attachment  made  before  judg- 
ment, and  also  from  the  judgment,  Held,  on  authority  of  Quebec  Bank  v, 
Carroll,  1  S.  D.  1,  44  N.  W.  723,  that  the  order  is  appealable,  and  motion  to 
dismiss  appeal  is  denied.  Wyman  et  al  v.  Wilmarth,  1  S.  D.  35,  44  N.  W. 
1151.  Vacating  Attachment.  An  order  vacating  an  attachment  is  an  ap- 
pealable order.  Red  River  Valley  Bank  v.  Freeman,  1  N.  D.  196,  46  N. 
W.  36. 

Act  of  1887— Not  Conflicting  With  Organic  Act.  The  act  of  1887, 
authorizing  an  independent  appeal  from  an  order  sustaining  or  overruling 


OF  APPEAT.S  IN  CIVIL  ACTIONS.  239 

a  demurrer,  is  not  in  conflict  with  see.  1869  of  the  organic  act  of  Dakota 
Territory,  providing  that  "writs  of  error,  bills  of  exceptions,  and  appeals 
shall  be  allowed  in  all  cases  from  the  final  decisions  of  the  district  courts  to 
the  supreme  court,"  etc.  (Mfg.  Co.  v.  Walsh,  2  Dak.  41,  3  N.  W.  307,  ex- 
plained and  held  not  inconsistent  with  this  decision.)  Greeley  v.  Winsor, 
et  al  1  S.  D.  618,  48  N.  W.  214;  White  v.  Railway  Co.,  5  Dak.  508,  41  N. 
W.  730;  Holcorabe  v.  McKusick,  20  How.  552;  Sleeth  v.  Murphy,  1  Mor- 
ris, 321;  Long  v.  Long,  Id,  458;  Bank  v.  U.  S.  Id.  482,  5  How.  213. 

Granting-  New  Trial.  An  order  granting  a  new  trial  is  an  appealable 
order.  Sec.  5236,  subd.  3,  Corap.  Laws;  laws  1891,  N.  D.,  regulating  ap- 
peals, sec.  24,  subd.  3.  This  clearly  indicates  that  the  trial  judge  granting 
a  new  trial  must  act,  not  arbitrarily,  but  upon  facts  showing  legal  ground 
for  new  trial.  Braithwaite  v.  Aikin  et  al,  (Rea  et  al,  Intervenors,)  2  N.  D. 
67,  49  N.  W.  419. 

(b).     Non-Appealable  Orders. 

Ruling-  on  Evidence,  Not  Decision  of  Demurrer.  A  ruling  sustain- 
ing an  objection  to  introduction  of  evidence,  on  the  ground  that  the  com- 
plaint does  not  state  facts  sufficient,  etc.,  is  rfot  the  decision  of  a  demurrer, 
within  the  meaning  of  subd.  3,  sec.  5236,  Comp.  Laws,  and  is  not  appeal- 
able. Ross  V.  Wait  et  al,  2  S.  D.  638,  51  N.  W.  866.  Sustaining  Demur- 
rer to  Answer — No  Judgment.  An  appeal  cannot  be  taken  to  the  supreme 
court  from  an  order  sustaining  a  demurrer  to  an  answer,  upon  which  no 
final  judgment  has  been  entered.  I^arris  Mfg.  Co.  v.  Walsh,  2  Dak.  41,  3 
N.  W.  307.  Granting  Temporary  Injimction.  Nor  from  an  order  grant- 
ing a  temporary  injunction  having  the  fo'-ce  andeffectof  a  writ  of  restitution. 
Cole  et  al  v.  Cady  et  al,  2  Dak.  29,  3  N.  W.  322.  Order  on  New  Trial— Ap- 
peal From  Judgment— Review.  Where  the  Statute  provides  for  a  motion 
for  new  trial,  and  appeal  from  the  order  made  thereon,  quaere,  whether  the 
supreme  court  will,  on  appeal  from  a  judgment  alone,  review  the  evidence 
apart  from  the  findings.  Warn  bole  v.  Foote,  2  Dak.  1,  2  N.  W.  239. 
Order  Discharging  Receiver — Abuse  of  Discretion.  An  order  refusing 
to  discharge  a  receiver  is  so  peculiarly  in  the  discretion  of  the  trial  court 
that  it  is  only  in  exceptional  cases,  and  where  abuse  of  di-scretion  is  clearly 
shown,  that  this  court  would  interfere  with  such  an  order.  Hoffman  v. 
Bank  of  Minot,  4  N.  D.  473, 61  N.  W.  1031.  Where  the  trial  court  had,  under  a 
stipulation,  dismissed  an  action,  without  knowledge  that  a  receiver  existed 
in  the  case;  and  the  receiver  applied  for  an  order  setting  aside  the  dismiss- 
al, setting  up  want  of  notice  of  application  for  same,  and  the  receivership, 
fraud,  etc.,  upon  which  application  of  receiver  the  former  order  was  set 
aside,  from  which  order  setting  aside  the  dismissal  an  appeal  was  taken; 
Held,  such  order  is  not  appealable,  under  laws  1893,  Ch.  83.  Hoffman  v. 
Bank  of  Minot,  4  N.  D.  473,  61  N.  W.  1031;  Hoffman  v.  Mortgage  Bank  & 
In  v.  Co.,  4  N,  D.  477,  61  N.  W.    1032.     Order  Not  Mentioned  In  Appeal 


240  CODE  OF  CIVIL  PROCEDURE. 

— Review — Appeal  From  Judgment— ftuaere.  In  Watnbole  v,  Foote,  1 
Dak.  1  (28),  2  N.  W.  239  (2o2),  the  question  is  raised,  but  not  decided,  by 
Shannon,  J.,  whether  in  that  case,  being  one  of  appeal  from  a  judgment, 
an  order  denying  a  new  trial  not  mentioned  in  the  notice  of  appeal,  could  be 
reviewed  on  such  appeal,  under  subd.  2  of  Sec.  22,  C.  C.  P.,  i  e,  will  the  ev- 
idence be  reviewed  without  an  appeal  from  the  order? 

SUBDIVISION  4. 

Consult  three  preceding  subdivisions,  and  subd.  5,  and  the  next  sec- 
tion. 

(a).     Appealable  Orders. 

Denying  New  Trial,  Before  Judgment— Review  on  Appeal  From 
Judgment.  An  order  denying  a  new  trial,  made  before  judgment,  is  re- 
viewable on  appeal  from  a  judgment  as  an  intermediate  ofder,  when  the 
making  of  such  order  is  assigned  as  error  on  the  appeal  from  the  judgment. 

Granger  v.  Roll  ot  al S.  D  . . .,  62  N.  W.  970.     The  court  in  this  case 

say,  in  comparing  our  statute  with  that  of  Wisconsin:  "By  section  3039, 
Rev.  St.  Wis.,  an  appeal  is  allcfwed  from  'any  judgment  or  order'  within  two 
years.  But  by  section  3042  it  is  provided  that  'the  time  within  which  an  ap- 
peal may  be  taken  directly  from  an  order  is  further  limited  to  thirty  day?.' 
Sec.  5236,  subd.  3  provides  that  an  appeal  may  be  taken  from  an  order  'when  it 
grants  or  refuses  a  new  trial."  And  after  quoting  sec.  5237,  Comp.  Laws, 
the  court  proceeds  to  state:  "The  above  section  (5237)  is  copied  from  sec- 
tion 3070  of  the  Wisconsin  statutes;  but  by  reason  of  the  peculiar  provision  of 
the  Wisconsin  statute  upon  the  subject  of  appeals  from  orders,  as  above  no- 
ticed, the  decisions  of  that  state  afford  us  but  a  little  aid .  In  a  similar  sec- 
tion in  the  Code  of  Civil  Procedure  of  California  (section  956),  'a  decision  or 
order  from  which  an  appeal  might  have  been  taken'  is  excepted.  Hence 
the  decisions  of  the  California  courts  furnish  us  but  little  light  upon  this 
question."  And  after  referring  to  the  holding  in  Hawkins  v.  Hubbard,  2 
S.  D.  631,  51  N.  W.  774,  to  the  effect  that  when  the  order  denyiny  new  trial 
was  made  after  judgment,  an  appeal  from  the  order  as  such  was  required, 
but  might  be  included  in  the  notice  of  appeal  from  the  judgment,  say:  "An 
appeal  from  the  order  in  such  case  is  necessary,  for  the  reason  that  the  ord- 
er, being  made  after  the  rendition  of  the  judgment,  if  erroneous,  does  not 
become  error  in  the  judgment,  and  the  order  can  only  be  reviewed  upon  an 
appeal  taken  from  the  same.  But,  when  the  order  is  made  and  denied  be- 
fore judgment  is  rendered,  it  becomes  error  in  the  judgment,  and  may  be 
reviewed  on  appeal  from  the  judgment,  as  an  intermediate  order  involving 
the  merits  and  necessarily  affecting  the  judgment. "  Citing,  as  represent- 
ing the  view  of  the  Wisconsin  court.  Machine  Co.  v.  Heller,  41  Wis.  657; 
Morris  v.  Niles,  67  Wis.  341,  30  N.  W.  353;  Machine  Co.  v.  Gurnee,  38 
Wis.    5.-!3.    Appeal   From    Order— When    Surplusage.     In    the   Granger 


OF  APPEALS  IN  CIVIL  ACTIONS.  241 

case,  supra,  it  was  further  held,  that  the  notice  of  appeal  from  the  order  in 
that  case  denying  a  new  trial  may  be  treated  as  surplusage,  and  disre- 
garded. Citing  Williams  v.  Williams, S.  D ,  61  N.  W.  38.  Sixty- 
Day  Limitation— Application  Of.  The  limitation  of  60  days  in  which  an 
appeal  from  an  order  may  be  taken,  has  no  application  to  an  order  denying 
a  new  trial  made  and  determined  before  entry  of  judgment,  when  an  appeal 
is  taken  from  the  judgment,  and  the  making  of  such  order  is  assigned  as  er- 
ror.    Granger  v.  Roll  et  al, . . . .  S.  D 62  N.  W.  970. 

Order,  Amending  Complaint  Without  Vacating  Judgment.  After 
a  judgment  sustaining  a  demurrer  to  the  complaint,  and  for  costs  to  defend- 
ant, was  entered,  and  the  judgment  and  costs  were  satisfied  on  execution,  an 
order  allowing  plaintiff  to  serve  and  file  an  amended  complaint,  without  va- 
cating the  judgment,  was  made.  Held,  that  such  order  involves  the  merits 
and  is  an  appealable  order,  under  subd.  4,  sec.  5236,  Comp.  Laws.  Greeley 
V.  Winsor  et  al,  2  S.  D.  361,  50  N.  W.  680.  Dismissing  Complaint  as  In- 
sufficient— Final  Judgment.  Upon  a  trial  to  the  circuit  court  without  a 
jury,  an  order  was  made  dismissing  the  action,  and  for  costs  in  favor  of  de- 
fendant, on  objection  to  introduction  of  evidence  under  the  complaint  as  not 
stating  a  cause  of  action,  the  order  reciting  that  it  was  "done  in  chambers." 
On  motion  to  dismiss  an  appeal  from  this  so-called  order,  on  the  grounds 
that  it  was  made  by  the  judge  and  not  by  the  court,  and  that  it  was  not  an 
appealable  order,  held,  that  it  was  a  final  judgment,  by  the  court,  and  ap- 
pealable.    Lawrence  Co.  v.  Meade  Co., S.  D ,  62  N.  W.  957;  Evans 

V.  Bradley,  4  S.  D.  83,  55  N.  W.  721.  Intervenor— Refusing  Withdrawal 
of  Complaint  by.  An  order  refusing  the  right  to  withdraw  a  complaint  of 
intervention,    "involves  the  merits  of  the  action  or  some  part  thereof,"  and 

is  appealable.     Schaetzel  v.  City  of  Huron   (White,   Intervenor,   S.  D. 

....,  60  N.  W.  741;  McLeod  v.  Bertschy,  30  Wis.  324;  Cooke  v.  Beach,  25 
How.  Pr.  356;  Mullen  v.  Peck,  57  Iowa  430,  10  N.  W.  829;  Mason  v.  Ryus,26 
Kas.  464:  In  re  Butler,  101  N.  Y.  307,  4  N.  E.  518;  De  Wolf  v.  Mf'g  Co.,  12 
R.  I.  133;  Burns  v.  Reigelsberger,  70  Ind.  522;  Peck  v.  McKellar,  33  Tex. 
234;  Keithley  v.  May,  29  Mo.  220;  1  Am.  &,  Eng.  Enc.  af  Law,  184  g;  5  Id. 
676,  note  1. 

Denial  of  Change  of  Venue.  The  denial  of  an  application  for  a 
change  of  venue,  based  upon  the  ground  that  an  impartial  trial  cannot  be 
had  in  the  county  where  the  action  is  pending,  is  appealable,  as  being  an  or- 
der involving  the  merits,  within  sections  5236,  5237.  Comp.  Laws.  White  v. 
Chicago,  M.  &  Sr.  P.  Ry  Co.,  5  Dak.  508,  41  N.  W.  730;  Bank  v.  Tallman,  15 
Wis.  101;  Oatman  v.  Bond,  Id.  23;  Haas  v.  Weinhagen,  30  Wis.  326;  Schatt- 
schneider  v.  Johnson,  39  Wis.  387;  Leland  v.  Hathorn,  42  N.  Y.  547;  St. 
John  V.  West,  4  How.  Pr.  s29;  Cram  v.  Brft-dford,  4  Abb.  Pr.  193. 

Consult  Huron  Waterworks  Co.  v.  City  of  Huron,  4  S.  D.  102,  55  N.  W. 
759,  as  to  a  case  of  appeal  from  an  order  granting  a  temporary  injunction. 
16— T  P 


242  CODE  OP  CIVIL  PROCEDURE. 

(b).     Non-Appealable  Orders. 

Refusing'  Application  for  Judgement.  An  order  of  district  court  re- 
fusing application  for  judgment  on  findings  of  a  jury,  is  not  appealable  un- 
der 8ubd.  4  of  this  section,  as  involving  the  merits.  Persans  et  al  v.  Simons, 
sheriff,  I  N.  D.  243,  46  N.  W.  969;  Treat  v.  Hiles  (Wis.),  44  N.  W.  1088. 
Temporary  Alimony — Order  For.  An  order  for  temporary  alimony  and 
counsel  fees  does  not  involve  the  merits  af  the  action,  or  necessarily  affect 
the  judgment,  and  cannot  be  reviewed  as  an  intermediate  order  on  appeal 
from  the  judgment  and  order  denying  a  new  trial.  Williams  v.  Williams, 
....  S.  D ,61  N.  W.38. 

SUBDIVISION  5. 

(a.)    Appealable  Orders. 

Court  Order— Dismissing  Appeal  From  J.  P.— "Judge  District 
Cotirt."  An  order  of  the  judge  of  the  district  court  to  show  cause  "before 
the  court  at  chambers,"  followed  by  an  order  dismissing  an  appeal  from  a 
justice's  court,  not  made  at  a  general  or  special  term,  and  not  reciting  that 
it  was  made  "by  the  court,"  but  signed  by  the  judge  as  "Judge  District 
Court,"  etc.,  renders  the  latter  prder  an  order  of  the  court  and  not  a  mere 
"chambers  order."  Travelers'  Ins.  Co.  v.  Weber,  2  N.  D.  239,  50  N.  W. 
703.  Form  of  Order  Not  Optional.  Held,  further,  that  under  sec.  4828, 
Comp.  Laws,  providing  that  district  courts  are  "always  open"  except  for 
trial  of  issues  of  fact  in  actions,  a  judge  of  said  court  cannot,  at  his  option, 
by  the  form  of  an  order  or  the  style  of  his  signature  thereto,  determine 
whether  a  given  matter  is  or  not  a  court  matter.     Id. 

(b).     Non-Appealable  Orders. 

Refusing  Vacation  of  Order  Dismissing  Appeal  From  Justice 
Court— Time  for  Appeal.  Where  an  order  of  the  district  court  dismissing 
an  appeal  from  justice's  court  was  sought  to  be  vacated,  after  time  for  ap- 
peal therefrom  to  this  court  had  expired,  which  motion  to  vacate  was  de- 
nied, and  defendant  attempted  to  appeal  from  such  order  refusing  to  vacate, 
held,  that  the  order  refusing  to  vacate  the  order  dismissing  the  appeal  is  not 
appealable.  This  court  will  not  take  jurisdiction  of  an  order  of  the  district 
court  refusing  to  vacate  an  appealable  order  of  that  court;  nor  can  the  time  for 
appeal  to  this  court  be  extended  by  an  order  of  court  below  vacating  or  re- 
fusing to  vacate  an  appealable  order.  Travelers'  Ins.  Co.  v.  Weber,  2  N.  D. 
239,  50  N.  W.  703;  Henly  v.  Hastings,  3  Cal.  342;  Higgins  v.  Mahoney,  50 
Cal.  446;  Holmes  v.  McCleary,  63  Cal.  497;  Larkin  v.  Larkin  (Cal.),  18  Pac. 
396;  Thompson  V.  Lynch,  43  Cal.  482;  Kittredge  v.  Stevens,  23  Cal.  2&3. 
Orders  by  Mistake— Vacatingt  This  holding,  however,  does  not  extend  to 
such  ordisrs  as  the  district  (circuit)  court  may,  under  sec.  4939,  Comp.  Laws, 
vacate  on  a  showing  that  they  were  made  by  mistake,  inadvertence,  or  ex- 
eiisable  neglect.    Travelers'  Ins.   Co.  v,   Weber,  supra,     The  Weber  case, 


OF  APPEALS  IN  CIVIL  ACTIONS.  243 

supra,  is  commented,  upon  in  the  case  of  In  re  Weber,  4  N.  D.  119  (121),  59 
N.  W.  523  (524).  Setting  Aside  Order  Dismissing  Case,  Where  an  ac- 
tion was  dismissed  and  costs  awarded,  under  stipulation,  without  knowledge 
on  part  of  the  judge  so  ordering,  that  a  receiver  existed  in  the  case,  and 
such  order  was  thereafter  set  aside  on  application  of  receiver,  from  which 
order  setting  it  aside  an  appeal  was  taken  to  this  court;  held,  that  the  order 
appealed  from  is  not  appealable  under  Laws  1893,  ch.  83.  Hoffman  v.  Bank 
of  Minot,  4  N.  D.  473,  61  N,  W.  1031;  Hoffman  v.  Mortgage  Bank  &  Inv. 
Co.,  4  N.  D.,  477,  61  N.  W.  1032.  Judge's  Order— Must  Move  Vaca- 
tion of.  The  supreme  court  is  not  authorized  by  either  the  law  or  the  con- 
stitution to  review  an  order  made  by  a  judge;  and  before  a  review  can  be 
had,  a  motion  must  be  made  to  the  court  below  to  vacate  the  order,  as  pro- 
vided in  subd.  5,  sec.  5236,  Comp.  Laws.  Black  Hills  F.  &  M.  Co.  v.  Grand 
Island  &  W.  C.  R.  Co.,  2  S.  D.  646,  51  N.  W.  342.  Chambers  Order— No 
Appeal.  Under  subd.  5  of  said  section,  an  appeal  directly  from  a  chambers 
order  cannot  be  sustained;  there  should  first  be  a  motion  to  vacate  the  or- 
der, then  an  appeal  from  the  order  of  the  court  refusing  to  do  so.  Bostwick 
et  al  V.  Knight  et  al,  5  Dak.  305,  40  N.  W.  344. 

Mandamus — Order  Denying  Vacation  of  Writ.  In  mandamus,  where 
demurrer  to  the  answer  was  interposed  and  sustained,  and  the  answer  dis- 
missed by  the  court,  and  a  peremptory  writ  issued,  the  exception  to  the  is- 
suance of  which  referred  to  the  writ  as  an  "order"';  and  after  expiration  of 
time  for  appeal  from  the  order  sustaining  the  demurrer,  and  from  the  order 
for  issuance  of  the  writ  a  motion  was  made  to  vacate  the  writ,  and 
a  court  order  was  made  denying  the  motion.  Held,  that  an  appeal  from 
the  last  mentioned  order  will  not  lie  under  subd.  5,  sec.  5236,  Comp. 
Laws  The  Travelers'  Ins.  Co.  v.  Mayer,  2  N.  D.  234,  50  N.  W.  706; 
Hayne,  New  Tr.  &  App.  981;  sec.  5536,  Comp.  Laws;  The  Trav- 
elers" Ins.  Co.  V.  Weber,  2  N.  D.  239,  50  N.  W.  703.  Mandamus— Sustain- 
ing Demurrer  to  Answer — Court  Order.  An  order  sustaining  demurrer 
to  answer  in  mandamus,  and  dismissing  the  answer,  which  did  not  recite 
that  it  was  made  "by  the  court",  and  signed  "W.  S.  Lauder,  Judge",  is  an 
order  of  the  district  court  and  not  one  made  "at  chambers."  Travelers'  Ins. 
Co.  v.  Mayer,  2  N.  D.  234,  50  N.  W.  706. 

APPEAL  FROM  JUDGMENT— WHAT  REI/iE]/t(ED  WITHOUT  EX- 
CEPTIONS—COURT AND  REFEREE  TRIALS.  §  5237,  Comp.  Laws. 
Upon  an  appeal  from  a  judgment,  as  well  as  upon  a  writ  of  er- 
ror, the  supreme  court  may  review  any  intermediate  order  or 
determination  of  the  court  below  which  involves  the  merits  and 
necessarily  affects  the  judgment,  appearing  upon  the  record 
transmitted  or  returned  from  the  circuit  court,  whether  the 
same  were  excepted  to  or  not;  nor  shall  it  be  necessary  in  any 


244  CODE  OF  CIVIL  PROCEDURE. 

case  to  take  any  exception  or  settle  any  bill  of  exceptions  to 
enable  the  supreme  court  to  review  any  alleged  error  which 
would,  without  a  bill  of  exceptions,  appear  upon  the  face  of  the 
record.  Any  questions  of  fact  or  of  law,  decided  upon  trials 
by  the  court  or  by  referee,  may  be  reviewed  when  exceptions 
to  the  findings  of  fact  have  been  duly  taken  by  either  party  and 
returned.     (Sec.  24,  chap.  20,  Laws  1887,  Dak.) 

SAME— WHEN  MOTION  FOR  NEW  TRIAL  NECESSARY.  § 
5627  Rev.  Codes  N.  D.  Upon  an  appeal  from  a  judgment  the 
supreme  court  may  review  any  intermediate  order  or  determin- 
ation of  the  court  below,  which  involves  the  merits  and  neces- 
sarily affects  the  judgment,  appearing  upon  the  record  trans- 
mitted or  returned  from  the  district  court,  whether  the  same  is 
excepted  to  or  not;  nor  shall  it  be  necessary  in  any  case  to  take 
any  exceptions  or  settle  a  statement  of  the  case  to  enable  the 
supreme  court  to  review  any  alleged  error  which  would  with- 
out a  statement  appear  upon  the  face  of  the  record.  Any  ques- 
tion of  fact  or  law  decided  upon  trials  by  the  court  or  by  a  ref- 
eree and  appearing  upon  the  record  properly  excepted  to  in  a 
case  in  which  an  exception  is  necessary  may  be  reviewed  by 
the  supreme  court,  whether  a  motion  for  a  new  trial  was  or  was 
not  made  in  the  court  below,  but  questions  of  fact  shall  not  be 
reviewed  in  the  supreme  court  in  cases  tried  before  a  jury,  un- 
less a  motion  for  a  new  trial  is  first  made  in  the  court  below. 
(Sec.  25,  chap.  120,  Laws  1891,  am'd  sec.  1,  chap.  121,  Laws 
1891,  N.  D.,  am'd  Rev.  Com'rs.) 

Rev.  Stat.  Wis.  1878,  sec.  3070. 
,   Sec.   411   C.   C.   P.;    Levisee  p.  121;  Waifs  Code    §  329;  Harst   Pr. 
Deer  Code,  §0956. 

Consult  decisions  under  preceding  section,  and  the  next,  section;  Chap- 
ter VII,  on  Exceptions,  pp.  63  to  77;  Chap.  V,  on  Trials  to  Court,  pp.  45  to 
63;  Chap.  VI,  on  Trials  by  Referee,  pp.  53  to  63;  also  the  various  headings 
of  "Exceptions",  in  Chap.  VIII,  on  New  Trials,  ante. 

As  to  judgments  in  supreme  court  upon  writ  of  error,  see  sec.  7520  to 
7625,  Comp.  Laws;  sees.  8348  to  8355,  Rev,  Codes,  Post 

(a).     Inuoluing  the  Merits. 

Alimony — Order  Allowing-.  An  order  for  temporary  alimon^^  and 
counsel  fees  does  not  involve  merits  or  necessarily  affect  the  judgment,  and 


OF  APPEALS  IN  CIVIL  ACTIONS.  ^45 

cannot  he  reviewed  on  appeal   from  the  judgment  and  order  denying  new 

trial.     Williams  v.  Williams, S.  D 61  N.  W.   38.     Transcript  on 

Judge's  Order— No  Bill — "Merits."  After  appeal  from  a  judgment,  a 
transcript  of  proceedings  at  the  trial,  including  stenographer's  transcript  of 
evidence,  was  by  order  of  court  below  annexed  to  the  judgment  roll  and  sent 
up,  but  no  bill  of  exceptions  was  attempted  to  be  or  was  settled;  no  specifi- 
cations of  error  were  in  the  transcript;  held,  the  transcript  was  no  part  of 
judgment  roll,  nor  is  same  an  order  "involving  the  merits",  within  meaning 
of  Comp.  Laws,  1887,  sees.  5237,  5103.  Wood  v.  Nissen,  2  N.  D.  26,  49  N.  W. 
103;  Harper  v.  Minor,  27  Cal.  107;  Hutton  v.  Reed,  25  Cal.  479. 

Appeal  Before  Jugment,  and  From  Order  After— Double.  An  ap- 
peal before  judgment  from  an  order  refusing  to  set  aside  a  verdict,  and  to 
grant  a  new  trial  on  the  ground  of  insufficiency  of  the  evidence,  and  from  a 
subsequent  order  refusing  the  same  relief  on  the  ground  of  newly-discovered 
evidence,  is  a  double  appeal,  and  will  be  dismissed  on  motion.  An  appeal 
from  the  judgment  might  bring  up  both  of  said  orders  for  review  as  inter- 
mediate orders  involving  the  merits,  and  necessarily  affecting  the  judg- 
ment, but  the  orders  themselves,  each  being  the  subject  of  an  independent 
appeal,  cannot  be  thus  united  before  judgment  in  a  single  appeal.  Hackett 
V.  Gunderson.  1  S.  D.  479,  47  N.  W.  546.  Appeal  from  Judgment  and  Or- 
der—When not  Double  Appeal.  An  appeal  from  a  judgment  and  from  an 
order  overruling  a  motion  for  new  trial,  made  after  judgment,  on  the  ground 
of  insufficiency  of  the  evidence  to  sustain  the  verdict,  will  not  be  dismissed 
as  a  double  appeal.  Hawkins  v.  Hubbard,  2  S.  D.  631,  51  N.  W.  774;  distin- 
guishing Hackett  v.  Gunderson,  1  S.  D.  479,  47  N.  W.  546.  From  Judg- 
ment and  Order,  and  Appealable  Order — Surplusage.  When  appeal  is 
taken  from  a  judgment  and  an  order  denying  a  new  trial,  and  also  fronj  an- 
other appealable  order,  it  will  be  presumed  the  appeal  was  intended  to  be 
taken  from  the  judgment  and  order  denying  a  new  trial,  and  the  appeal 
from  the  independent  order  will  be  treated  as  surplusage.  Williams  v. 
Williams,  . . . .  S.  D ,  61  N.  W.  38. 

(b).     Correction  of  Errors— Exceptions. 

Appeal    From   Judgment — Bill    Necessary    for    Review    of   Order. 

This  court  on  an  appeal  from  judgment  will  not  consider  the  evidence  unless 
embodied  in  a  bill  or  statement,  which  rule  applies  to  the  review  of  an  ord- 
er designated  for  review  in  the  notice  of  appeal.     Merchants'   Nat.  Bank  v. 

McKinney  et  al,    S.   D ,   60  N.   W.    162.     Motion  for  New  Trial 

After  Judgment— Appeal  From  Judgment.  Although  au  appeal  from  a 
judgment  does  not  present  questions  of  fact  to  this  court  for  review,  where 
motion  for  new  trial  was  made  after  judgment  and  no  appeal  from  the  order 
denying  it,  errors  of  law  occurring  at  the  trial,  excepted  to,  are  reviewable 
on  appeal  from  the  judgment  only,  when  presented  by  bill  or  statement, 
without  motion  for  new  trial.     Miller  v.   Way  et  al,  5  S.  D.  468,   59  N.  W. 


246  CODE  OF  CIVIL  PROCEDURE. 

467;  Mercantile  Co.  v.  Faris,  5  S.  D.  348,  58  N.  W.  813;  M'fg.  Co.  v.  Gal- 
loway, 5  S  D.  205,  58  N.  W.  565;  Pierce  v.  Manning,  2  S.  D.  517,  51  N.  W. 
332;  Evenson  v.  Webster,  3  S.  D.  382,  53  N.  W.  747.  Review  Without  Mo- 
tion for  New  Trial— Of  Errors.  On  appeal  from  a  judgment,  this  court 
will  review  errors  of  law  occurring  at  the  trial,  whether  a  motion  for  new 
trial  was  or  was  not  made  below.  Edwards  &  McCuUoch  Lum.  Co.  v.  Bak- 
er, 2  N.  D.  289,  60  N.  W.  718;  Sanford  v.  Bell,  (or  Sanford  v.  Duluth  &  Dak. 
El.  Co.)  2  N.  D.  6,  48  N.  W.  434.  Sufficiency  of  Evidence— Necessity  for 
Motion  Below.  This  court  can  examine  questions  raised  by  assignments 
of  error,  whether  motion  for  new  trial  is  made  below  or  not.  Such  motion 
is  only  necessary  where  the  question  is  the  sufficiency  of  the  evidence  to  sus- 
tain a  finding  of  fact  of  the  court  or  jury.  No  question  of  fact  was  here  in- 
volved, and  the  court  decided  the  effect  of  each  of  the  ballots  in  question 
just  as  it  would  construe  and  determine  the  effect  of  any  other  instrument 
before  it.  If  such  decision  is  wrong  it  is  an  error  of  law  reviewable  without 
motion  for  new  trial.  LeClaire  v.  Wells, S.  D ,  64  N.  W.  519;  Mer- 
cantile Co.  V.  Faris,  5S.  D.  348,  58  N.  W  813.  The  insufficiency  of  the  evi- 
dence to  justify  the  findings  of  the  court  or  verdict  of  the  juiy  will  only  be 
reviewed  by  this  court  when  made  ground  for  motion  for  a  new  trial  below, 
and  the  order  denying  or  granting  a  new  trial  is  properly  brought  to  this 

court  for  review  on  appeal.     Gade  v.  Collins  et  al, S.  D ,66  N.  W. 

466.  Judgment  Before  New  Trial — Review.  An  appeal  from  a  judgment 
only,  that  is  entered  before  a  new  trial  is  applied  for,  presents  for  review 
errors  of  law  brought  to  this  court  by  bill   of  exceptions.     Baird  et  al  v. 

Gleckler, S.  D ,  64  N.  W.  118.     Directing  Verdict— No  Review 

Without  Exception.  The  action  of  the  trial  court  in  directing  a  verdict, 
and  in  refusing  to  allow  plaintiff  to  dismiss  her  action,  cannot  be  reviewed 
on  appeal  without  an  exception.  Sections  5080,  5237,  Comp.  Laws,  held,  not 
to  permit  such  review  without  an  exception.  DeLendrecie  v.  Peck,  1  N.  D. 
422,  48  N.  W.  342;  Hayne,  New  Tr.  &  App.,  sec.  119.  Such  ruling  is  neith- 
er an  order  or  decision  under  sec.  5080,  nor  an  order  or  determination  under 
sec.  5237,  Comp.  Laws,  Id.  Kirch  v.  Davis,  55  Wis.  287,  11  N.  W.  689. 
When  Must  Settle  Bill.  In  Gress  v.  Evans,  1  Dak.  371,  46  N.  W.  1132,  it 
was  held,  that  under  the  Code  of  Civ.  Proc.  of  Dakota Ter'y.  (1868),  by  which 
the  distinction  between  actions  at  law  and  suits  in  equity  was  abolished,  the 
evidence  in  a  suit  to  remove  a  cloud  on  a  title  will  not  be  reviewed  on  ap- 
peal, unless  embodied  in  a  case  or  bill  of  exceptions.  Reviewed  on  Peti- 
tion Without  Motion  for  New  Trial.  In  Waldron  v.  Evans,  1  Dak.  10, 
46  N.  W.  607,  the  case  came  to  the  supreme  court  by  petition  in  error.  There 
was  a  trial  to  the  jury  in  the  court  below  and  various  charges  of  the  court  to  the 
jury,  and  questions  as  to  admission  of  evidence,  were  reviewed  in  the  su- 
preme court.  A  motion  to  dismiss  the  appeal  on  the  ground  that  no  motion 
for  new  trial  was  made  in  the  court  below,  was  denied,  and  the  case  decided 


oP  APPEALS  IN  clt^it,  Actions.  247' 

on  the  merits.  In  First  National  Bank  v.  Comfort,  4  Dft,k.  167,  28  N.  W, 
855,  it  was  held,  that  it  is  not  necessary,  in  order  to  obtain  a  review  of  the 
whole  case  on  appeal,  to  move  for  a  new  trial  in  the  court  below.  The  de- 
cision was  under  subd.  2  of  sec.  22,  Code  Procedure  of  Dakota  Ter'y,  which 
provides  that  upon  an  appeal  from  final  judgment  the  appellant  may  have 
"any  intermediate  order  enumerated  in  this  section  reviewed  by  the  su- 
preme court."  The  court  say:  "The  appeal  from  the  judgment  does  not 
depend  upon  the  motion  for  a  new  trial.  It  is  undoubtedly  the  intention  of 
the  statute  that  the  question  of  the  insufficiency  of  the  evidence  can  only  be 
raised  by  a  motion  for  a  new  trial."  In  that  case  the  trial  judge  directed  a 
verdict,  which  was  the  only  alleged  error  assigned  on  appeal.  Review  of  Or- 
der Not  Mentioned— Quaere.  In  Wambole  v.  Foote,  2  Dak.  1  (28),  2  N.  W. 
239,  the  question  was  raised  but  not  decided,  whether,  under  Subd.  2,  sec.  ' 
22,  Code  Civ.  Proc.  Dak.,  an  order  denying  a  new  trial  can  be  reviewed 
upon  appeal  from  the  judgment  of  the  court  below,  there  being  no  mention 
of  such  order  in  the  notice  of  appeal.  No  Trial  De  Novo.  In  Caledonia 
Gold  Min.  Co.  v.  Noonan  et  al,  3  Dak.  189,  14  N.  W.  426,  Held,  that  the 
supreme  court  is  precluded  from  trying  anew  the  cause;  that  under  the 
practice  act  of  Dak.  Territory  that  court  is  only  empowered  to  correct  errors 
occurring  in  district  court.  Questions  of  Fact — On  Exceptions.  Under 
sec.  25,  chap.  120,  laws  1891,  this  court  is  required,  upon  appeal,  to  review 
questions  of  fact  in  cases  tried  by  the  court  or  referee,  when  exceptions  to 
findings  are  duly  made.  But  this  court  will  not  try  the  case  denovo.  Jas- 
per V.  Hazen,  4  N.  D,  1,  58  N.  W.  454;  Paulson  v.  Ward  et  al,  4  N.  D.  100, 
58  N.  W.  792;  Snyder  v.  Wright,  13  Wis.  689;  Fisher  v.  Loan  &  Trust  Co., 
21  Wis.  73;  Garbutt  v.  Bank,  22  Wis.  384.  Act  Not  Retrospective,  Chap. 
82,  laws  1893,  construed,  and  held,  not  to  apply  to  a  case  tried  in  1892, 
where  the  trial  was  had  and  record  thereof  completed  by  filing  judgment 
roll,  embracing  findings  and  a  bill  of  exceptions.  Hostetter  v.  Brooks  Ele- 
vator Co.,'  4  N.  D.  357,  61  N.  W.  49.  No  Specifications,  No  Review.  Where 
the  bill  of  exceptions  contained  no  specifications  of  errors  of  law,  such  er- 
rors, if  they  exist,  will  not  be  considered  in  this  court  on  review.  This  es- 
tablished and  statutory  rule  applies  to  cases  of  trials  to  the  court,  where  no 
motion  for  a  new  trial  was  made  below,  the  same  as  in  other  cases.  Laws 
1891,  chap.  121;  Sup,  Ct.  rule  No,  13;  Hostetter  v.  Brooks  Elevator  Co.,  4 
N.  D.  357,  61  N.  W.  49.  Where  exceptions  to  findings  of  fact  do  not  spec- 
ify wherein  they  are  not  justified  by  the  evidence,  this  court  will  not  ex- 
plore the  record  to  ascertain  whether  or  not  the  finding  is  supported  by  the 
evidence.  Hostetter  v.  Brooks  Elevator  Co.,  4  N.  D.  357,  61.  N.  W.  49. 
Whole  Case  Open  Here,  When.  When  a  party  appeals  for  a  new 
trial  in  the  appellate  tribunal,  the  whole  case  is  open  to  investigation,  and 
not  merely  that  portion  of  the  judgment  which  is  adverse  to  appellant. 
Tyler  v.  Shea,  4  N.  D,  377,  61  N.  W.  468;  Bank  v.  Wheeler,  28  Conn.  433; 


248  CODE  OF  CIVIL  PROCEDURE. 

Curtis  V,  Beardsley,  15  Conn.  618;  Campbell  v.  Howard,  5  Mass.  376;  Shar- 
on V.  Hill,  26  Fed.  337;  Ea^l  v.  Hart,  (Mo.  Sup.)  1  S.  W.  238;  Burns  v. 
Howard,  9  Abb.  N.  C.  321;  Yeaton  v.  U.  S.  5  Cranch,  281;  State  v.  Forner, 
(Kas.)4Pac.  357. 

(c).     On  the  Record  Alone. 

Judgrment  Roll— What  Reviewed.  Where  the  record  on  appeal  con- 
sists only  of  the  pleadings,  the  special  verdict,  and  the  judgment,  and  the 
only  error  assigned  is  that  the  judgment  is  not  supported  by  the  special  ver- 
dict, no  other  question  of  error,  not  going  to  the  jurisdiction  of  the  court, 
can  be  considered.  John  A.  Tolman  Co.  v.  Savage  et  al,  5  S.  D.  496,  59  N. 
W.  882.  No  Bill— Appeal  Not  Dismissed,  When.  The  fact  that  no  bill 
of  exceptions  or  statement  was  settled  by  the  trial  judge  is  no  ground  for 
dismissing  an  appeal,  where  some  of  the  errors  assigned  are  predicated  on 

the  judgment  roll  proper.     Kehoe  v.  Hanson  et  al, S.  D ,  60  N.  W. 

31.  Abstract  Stricken — Remaining  Record.  Where,  from  the  showings 
made  in  the  respective  abstracts,  relative  to  the  question  whether  a  bill  of 
exceptions  or  statement  was  ever  settled,  the  purported  evidence  is  stricken 
from  the  abstract,  only  such  assignments  of  error  will  be  considered  as  can 
be  examined  on  the  record  remaining.  Hodges  v.  Bierlein,  4  S.  D.  219,  56 
N.  W.  748.  Record  on  Former  Appeal,  Used  When.  On  appeal  from  a 
judgment  resulting  from  the  granting  of  a  new  trial,  which  new  trial  had 
been  ordered  by  the  supreme  court  on  a  former  appeal,  the  records  on  the 
former  appeal  in  the  action  may  be  looked  into  to  ascertain  what  facts  and 
questions  were  before  the  court",  so  as  to  see  the  proper  application  of  the 
rule  that  such  decision  is  the  law  of  the  case.  Plymouth  Co.  Bank  v.  Gil- 
man,  3  S.  D.  170,  52  N.  W.  869;  (affiFmed,  4  S.  D.  265,  56  N.  W.  892);  Mc- 
Kinley  v.  Tuttle,  42  Cal.  571.  Void  Judgment — Reversal  Without  Rais- 
ing Question.  A  judgment  appearing  by  the  record  to  be  void  will  be 
reversed  on  appeal,  though  neither  party  raises  the  question.  Miller  v. 
Sunde,  1  N.  D.  1,  44  N.  W.  301;  Robinson  v.  Navigation  Co.,  112  N.  Y.  315, 
19  N.  E.  625.  Appeal  From  Judgement  Roll — Review  of  Judgment.  On 
appeal  from  a  judgment  in  a  case  tried  to  the  court,  appeal  being  from  judg- 
ment roll  only,  it  was  contended  by  respondent  that,  there  being  no  bill  of 
exceptions  or  statement,  neither  the  judgment  nor  findings  of  fact  are  re- 
viewable. Held,  that  the  judgment  is  deemed  excepted  to,  under  first 
clause  of  sec.  5080,  Comp.  Laws,  and  the  question  whether  the  judgment  ap- 
pealed from  is  justified  by  the  findings  is  reviewable  here.  There  is  a  plain 
distinction  between  this  case  and  one  where  motion  is  made  for  judgment 
upon  the  pleadings,  in  which  latter  case  it  has  been  held  that  a  bill  of  ex- 
ceptions is  necessary  to  show  an  exception  to  the  order  granting  such  mo- 
tion.    Smith  et  al  v.  Commercial  Nat.  Bank  et  al, S.  D ,  64  N.  W. 

629;  Mort.  Co.  v.  Bradley,  4  S.  D.  158,  65  N.  W.  1108.  No  Bill-Findings 
Stand.     Where  the  appeal  is  from   a  judgment  rendered  upon  findings  of 


OF  APPEALS  IN  CIVIL  ACTIONS.  249 

the  court,  and  there  is  no  bill  of  exceptions  or  statement,  the  findings  stand 
as  the  established  facts,  and  this  court  only  inquires  whether  the  judgment 
is  such  as  ought  to  follow  such  facts.  Connor  v.  Nat.  Bank  of  Dak.  et  al, 
....  S.  D ,64N.  W.  519. 

(d).     Questions  of  Fact — Court  and  Referee  Trials. 

"When  Appeal  Does  not  Present  Evidence  for  Review — New  Trial. 
Where  an  action  is  tried  by  the  court  without  a  jury,  and  a  motion  for  new 
trial  on  the  ground  of  the  insuHiciency  of  the  evidence  to  sustain  the  find- 
ings is  overruled,  an  appeal  from  the  judgment  does  not  present  the  evi- 
dence for  review  in  this  court  unless  error  is  assigned  in  the  overruling  of 
the  motion  for  new  trial.  The  supreme  court  will  not  examine  the  question 
of  sutticiency  of  the  evidence  to  support  either  the  verdict  of  a  jury  or  the 
findings  of  a  court  until  such  question  has  been  presented  to  the  trial  court 
by  motion  for  new  trial.  Pierce  et  al  v.  Manning,  sheriff,  3  S.  D.  517,  51  N. 
W.  332;  Clark  v.  Schnur,  40  Kas.  72,  19  Pac.  327;  Struthers  v.  Fuller,  45 
Kas.  735,  26  Pac.  471;  Carson  v.  Funk,  27  Kas.  524;  Lingerman  v.  Nave,  31 
Ind.  222.  The  court,  in  Pierce  v.  Manning,  supra,  say:  "The  making  of  a 
motion  for  a  new  trial,  in  any  case  where  it  is  required,  is  not  a  mere  per- 
functory ceremony  to  precede  an  appeal.  The  fact  of  making  the  motion  is 
of  importance  only  in  connection  with  the  ruling  of  the  court  upon  such  mo- 
tion; and  the  ruling  is  important  because  it  is  the  decision  of  the  court  up- 
on the  questions  presented  in  the  motion,  and  to  that  extent  fixes  the  rights 
of  the  parties.  It  is  an  adjudication  of  all  the  matters  necessarily  involved 
in  a  determination  of  the  motion.  In  this  case  the  denial  of  the  motion  for 
a  new  trial  was  a  judicial  determination  that  the  evidence  was  sufficient  to 
support  the  findings.  With  the  correctness  of  such  decision  unchallenged 
by  appeal  or  by  an  allegation  of  error,  can  appellant  be  heard  to  argue  in 
this  court  that  the  judgment  ought  to  stand,  because  the  evidence  did  not 
sustain  the  findings;  the  very  question  which  he  submitted  to  the  trial  court 
in  his  motion  for  new  trial,  and  of  whose  decision  he  does  not  complain? 
The  cases  from  Indiana  and  Kansas  are  against  it.  The  ruling  appears  tech- 
nical, but  is  a  logical  growth  from  the  facts.  Appellant  appeals  from  the 
judgment,  but  plainly  the  judgment  is  right  if  the  findings  are  correct.  The 
correctness  of  the  findings  Las  been  adjudicated  by  the  court  below.  To  al- 
low a  reagitation  of  the  same  matters  in  this  court,  in  a  proceeding  in  which 
the  determination  of  the  court  below  is  not  directly  attacked,  would  be  akin 
to  permitting  such  adjudication  of  the  trial  court  ujwn  the  motion  for  new 
trial  to  be  impeached  collaterally."  Hearing  on  Merits  Without  Motion 
Below.  In  Waldron  v.  Evans,  1  Dak.  10,  46  N.  W.  607,  which  went  to  the 
supreme  court  by  "petition  in  error,"  that  court  overruled  a  motion  to  dis- 
miss, made  on  the  ground  that  plaintiff  in  error  did  not  make  a  motion  for  a 
new  trial;  and  proceeded  to  hear  the  case  on  its  merits.  No  Motion  for 
New  Trial— Sufficiency  of  Evidence.     When  an  appeal  is  taken  from  the 


250  CODE  OP  CIVIL  PROCEDURE. 

judgment,  and  appellant  has  failed  to  make  a  motion  for  a  new  trial  in  the 
court  below,  the  question  of  sufficiency  of  evidence  to  support  findings  will 
not  be  examined  on  appeal.  This  court  will  only  examine  such  matters  re- 
lating to  facts  complained  of  below  as  are  brought  to  its  attention  by  motion 
for  a  new  trial.  Norwegian  Plow  Co.  v.  Bellon  et  al,  4  S.  D.  384,  .57  N.  W.  17; 
Pierce  V.  Manning,  2  S.  D.  517,  51  N.  W.  332.  Must  Review  Facts  and  Law. 
In  Randall  etal  v.  Burke  Tp.  of  Minnehaha  County  et  al,  4  S.  D.  337,  57  N.W. 
4,  it  was  held,  that  the  last  clause  of  sec.  5237,  Comp.  Laws,  requires  the  su- 
preme court,  in  a  cause  tried  by  a  court  or  referee,  to  review  questions  of 
fact,  as  well  as  law.  See  Snyder  v.  Wright,  13  Wis.  689;  Fisher  v.  Trust 
Co.,  21  Wis.  73.  Appeal  From  Order — Review  of  Evidence.  In  the  case 
of  Black  Hills  Mer.  Co.  v.  Gardiner  et  al,  5  S.  D.  256,  58  N.  W.  557,  which 
was  a  case  of  appeal  from  an  order  discharging  an  attachment,  the  court,  in 
considering  the  questions  of  fact  involved,  obseive:  "Under  section  5237, 
Comp.  Laws,  however,  we  do  not  treat  the  finding  of  the  court  upon  a  ques- 
tion of  fact  as  equalij'  conclusive  with  the  verdict  of  a  jury.  Randall  v. 
Burke  Tp.,  4  S.  D.  337,  57  N.  W.  4.  We  will,  therefore,  examine  the  evi- 
dence", etc.  Appeal  From  Judgment — Review — Must  Be  Bill.  Under  Code 
Civil  Proc.  Dak.,  1868,  the  evidence  in  a  suit  to  remove  a  cloud  on  title  will 
not  be  reviewed  on  appeal,  unless  embodied  in  a  case  or  bill  of  exceptions. 
The  appeal  was  from  a  judgment  on  trial  to  the  court.  Gress  v.  Evans,  1 
Dak.  371,  46  N.  W.  1132.  When  Findings  Presumed  Justified— Appeal 
From  Judgment.  Where  a  motion  for  a  new  trial  is  made  after  the  entiy 
of  judgment,  and  the  insufficiency  of  the  evidence  to  sustain  the  decision  is 
not  assigned  as  error,  it  will  be  presumed  that  both  the  findings  and  decis- 
ion are  justified  by  the  evidence,  when  the  appeal  is  from  the  judgment  only, 
as  errors  occurring  after  judgment  are  not  presented  for  review.  Barnard 
&  Leas  Manufacturing  Co.  v.  Galloway  et  al,  5  S,  D.  205,  58  N.  W.  56o;  Mor- 
ris v.  Niles,  67  Wis.  341,  30  N.  W.  353;  Latimer  v.  Morrain,  43  Wis.  107. 

POWER  OF  SUPREME  COURTON  APPEAL— REMITTIEUR-REHEAR- 
ING— CLERK'S  DUTIES.  §  5238  Comp.  Laws;  §  5628  Rev.  Codes 
N.  D.  Upon  an  appeal  from  a  judgment  or  order,  or  upon  a 
writ  of  error,  the  supreme  court  may  reverse,  affirm  or  modify 
the  judgment  or  order,  and  as  to  any  or  all  of  the  parties;  and 
may,  if  necessary,  or  proper,  order  a  new  trial;  and  if  the  ap- 
peal is  from  a  part  of  the  judgment  or  order,  may  reverse,  af- 
firm or  modify  as  to  the  part  appealed  from.  In  all  cases  the 
supreme  court  shall  remit  its  judgment  or  decision  to  the  court 
from  which  the  appeal  or  writ  of  error  was  taken,  to  be  en- 
forced accordingly;  and  if  from  a  judgment,  final  judgment 
shall  thereupon  be  entered  in  the  court  below  in  accordance 


OF  APPEAT.S  IN  CIVIL  ACTIONS.  251 

therewith,  except  where  otherwise  ordered.  The  clerk  of  the 
supreme  court  shall  remit  to  such  court  the  papers  transmitted 
to  the  supreme  court  on  the  appeal  or  writ  of  error,  together 
with  the  judgment  or  decision  of  the  supreme  court  thereon, 
within  sixty  days  after  the  same  shall  have  been  made,  unless 
the  supreme  court,  on  application  of  either  of  the  parties, 
shall  direct  them  to  be  retained  for  the  purpose  of  enabling 
such  parties  to  move  for  a  rehearing.  In  case  such  motion  for 
a  rehearing  is  denied,  the  papers  shall  be  remitted  within 
twenty  days  after  such  denial.  The  clerk  of  the  supreme  court 
shall  in  all  cases,  except  when  theorder  or  judgment  is  affirmed, 
also  transmit  with  the  papers  so  returned  by  him  a  certified 
copy  of  the  opinion  of  the  supreme  court,  and  his  fees  for  such 
copy  shall  be  taxed  and  allowed  with  his  other  fees  in  the  case, 
(Sec.  25,  chap.  20,  laws  1887,  Dak,) 

[Sec.  5628  Rev.  Codes  N.  D.  is  the  same,  except  that  the  terms  "or 
upon  a  writ  of  error,"  and  "or  writ  of  error,"  are  omitted.  (Sec.  26,  chap. 
120,  laws  1891,  N.  D.)] 

Rev.  Stat.  Wis.  1878,  sec.  3071. 

Sec.  23,  412  C.  C.  P.;  Levisee  p.  121;  Wait's  Code  §330;  Harst.  Pr. 
Deer.  Code  §  957,  958. 

Consult  two  preceding  sections,  and  next  section;  on  writ  of  error,  see 
sec.  7521,  Comp.  Laws,  sec.  8349  Rev.  Codes,  N.  D.  et  seq.  Post.  Rules  24, 
25,  Sup.  Ct.  S.  D.;  Rules  29,  30,  Sup.  Ct.  N.  D.  Post. 

Waiver  of  Appeal — Benefit  Under  Judgment— Modification.  One 
does  not  waive  right  to  appeal  from  a  judgment  by  accepting  a  benefit 
thereunder,  if  the  benefit  is  one  to  which  he  is  so  absolutely  entitled  that  a 
reversal  will  not  affect  his  right  to  it;  nor  when  the  appellate  court  has 
power  to  modify  the  judgment,  making  it  more  favorable  to  him.  But  in 
such  case  he  must  appeal  from  only  the  portion  of  the  judgment  which  is  ad- 
verse to  him  and  this  court  will  on  the  appeal  only  modify  the  judgment  in  that 
Tyler  v.  Shea,  4  N.  D.  377,  61  N.  W.  468;  Reynes  v.  Dumont,  130,  U.  S. 
354,  9  Sup.  Ct.  486;  Embry  v.  Palmer,  107  U.  S.  3,  2  Sup.  Ct.  25;  Higbie  v. 
Westlake,  14  N.  Y.  281;  Mellen  v.  Mollen  (N.  Y.  App.)  33  N.  E.  545;  Con- 
tructionCo.  v.  O'Neil  (Or.)  32  Pac.  764;  Morriss  v.  Garland,  78  Va.  215; 
Mfg.  Co.  V.  Huiske  (Iowa)  29  N.  W.  621;  Monnet  v.  Merz,  (Supper.  Ct.  N. 
Y.)  17  N.  Y.  Supp.  380,  affirmed  131  N.  Y.  646,  30  N.  E.  866;  Tarlton  v. 
Goldhwaite.  23  Ala.  346;  Inverarity  v.  Stowell,  10  Or.  261.  No  Reversal 
in  Part,  When— Faulty  Record.  In  Cady  v.  Chicago,  M.  &  St.  P.  Ry.  Co. 
5  Dak.  97,  37  N.  W.  221,  held,  that  a  judgment  based  on  a  verdict  for  plain- 
tiff for  the  killing  of  cattle,  where  the  only  error  assigned  on  appeal  was  to 


252  eOt)E  OF  CIVIL  PROCEDURE. 


the  charge  of  the  court  as  to  killing  one  of  the  cows,  cannot  he  reversed  or 
modified,  under  Code  of  Civ.  Proc.  Dak.,  sec.  23,  providing  that  "the  su- 
preme court  may  reverse,  affirm,  or  modify  the  judgment  appealed  from 
in  whole  or  in  part,"  etc., -it  not  appearing  of  record  how  much  of  the  judg- 
ment was  erroneously  awarded.  After  Remand— Appearance— Waiver  as 
to  Remittitur.  After  a  cause  has  been  heard  in  the  supreme  court,  and  re- 
manded for  a  new  trial,  the  general  appearance  entered  by  appellee  or  de- 
fendant in  error,  in  the  court  below,  and  submitting  to  its  jurisdiction,  by 
having  a  trial  on  the  merits,  without  objection,  is  a  waiver  of  any  error 
which  might  have  been  committed  in  the  transmission  of  the  decision  of  the 
supreme  court  to  the  district  court.  Bently  et  al  v.  Fraley,  1  Dak.  36,  4(> 
N.  W.  o)).  Oartioiari- Jai?ii3at  Eataral  Above— Restitution.  The 
judgment  on  certiorari  is  entered  in  this  court.  No  mandate  is  sent  to  the 
inferior  tribunal  to  render  judgment;  and  the  judgment  in  this  case  annull- 
ing the  order  of  the  court  below,  will  contain  a  direction  that  a  writ  of  res- 
titution issue  out  of  this  court  to  restore  to  the  sheriff  the  property  taken 
from  him  under  the  order  annulled.  State  ex  lel  Enderlin  State  Bank  v. 
Rose,  Dist.  Judge,  4  N.  D.  319,  58  N.  W.  514. 

Void  Judgment —R3V3rsal  Without  Ratjuest.  This  court  will  re- 
verse a  judgment  shown  by  the  record  to  be  void  for  want  of  jurisdiction,  al- 
though the  point  is  not  raised  by  either  party.  Miller,  Adm'r,  v.  Sunde,  1 
N.  D.  1,  44  N.  W.  301;  Robinson  v.  Navigation  Co.,  112  N.  Y.  315,  19  N.  E. 
626. 

Directing  Amendment  Below,  When  Proper.  This  court  has  the 
power,  on  remitting  a  case  appealed  to  this  court  to  the  trial  court,  to  direct 
that  an  amendment  to  a  pleading  may  be  made  in  the  trial  court,  and  such 
power  should  be  liberally  exercised  in  furtherance  of  justice.  Kellam,  J., 
dissenting.  Evans  v.  Hughes  Co.,  4  S.  D.  33,  54  N.  W.  1049;  Greeley  v.  Mc- 
Koy,  3  S.  D.  624,  54  N.  W.  659;  Lamming  v.  Galusha,  J35  N.  Y.  239,  31  N. 
E.  1024;  Mitchell  v.  Thome.  134  N.  Y.  536,  32  N.  E.  10;  Rothschild  v.  "Whit- 
man, 132  N.  Y.  472,  30  N.  E.  858,  and  other  N.  Y.  cases  cited  in  principal 
case:  Rigg  v.  Parsons,  29  W.  Va.  522,  2  S.  E.  81;  Railroad  Co.  v.  Lohges 
(Ind.),  33  N.  E.  449;  Jones  v.  Shay,  72  Iowa  237,  33  N.  W.  650;  Sewing  Ma- 
chine Co.  V.  Moore,  2  Dak.  280,  8  N.  W.  131;  Feldenheimer  v.  Tressel,  6 
Dak.  94,  50  N.  W.  720.  On  appeal  from  an  order  sustaining  a  demurrer  to 
complaint,  this  court,  in  affirming  the  order,  may,  unless  judgment  has  been 
rendered,  which  it  also  affirms,  grant  leave  to  amend;  leave  having  been  given 
on  sustaining  the  demurrer  below.  People  v.  Jackson,  24  Cal.  630,  distin- 
guished. Greeley  v.  McCoy,  3  S.  D.  624,  54  N.  W.  659;  Sewing  Machine  Co. 
V.  Moore,  2  Dak.  280,  8  N.  W.  131;  Adams  v.  Smith,  6  Dak.  94,  50  N.  W.  720. 

When  Record  Remanded  for  Judgement  Below.  In  actions  tried 
here  under  provisions  of  chap.  82,  Laws  1893,  while  this  court  will  determ- 
ine the  final  judgment  or  decree  to  be  entered,  such  entry  will  not  be  made 


OF  APPEALS  IN  CIVIL  ACTIONS.  253 

in  this  cour*^,  but  the  record  will  be  remanded  to  the  lower  court,  under  sec. 
26,  chap.  120,  Laws  1891,  and  it  is  the  duty  of  that  court  to  order  entry  of  a 
judgment  in  conformity  with  the  determination  of  this  court.  Taylor  v. 
Taylor,  . . . .  N.  D ,  63  N.  W.  893. 

FURTHER  PROCEEDINGS  BELOW  WITHIN  ONE  YEAR— DISMIS- 
SAL. §  5239  Comp.  Laws;  §  5629  Rev.  Codes  N.  D.  In 
every  case  in  error,  or  on  appeal,  in  which  the  supreme  court 
shall  order  a  new  trial,  or  further  proceedings  in  the  court  be- 
low, the  record  shall  be  transmitted  to  such  court,  and  pro- 
ceedings had  therein  within  one  year  from  the  date  of  such  or- 
der in  the  supreme  court,  or  in  default  thereof,  the  action  shall 
be  dismissed,  unless  upon  good  cause  shown,  the  court  shall 
otherwise  order.     (Sec.  26,  chap.  20,  Laws  1887,  Dak.) 

[Sec.  5629,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in 
error"  are  omitted.     (Sec.  27,  chap.  120,  Laws  1891,  N.  D.)] 

Rev.  Stat.  Wis.  1878,  sec.  3.072. 

Consult  two  preceding  sections;  sec.  7524,  Comp.  Laws;  sec.  8354,  Rev. 
Codes,  N.  D. 

ALL  EVIDENCE  RECEIVED— COURT  TRIAL~OBJECTIONS—SET- 
TLEMENT  OF  STATEMENT— NEW  TRIAL  ABOVE.  §  5630  Rev.  Codes 
N.  D.  In  all  actions  tried  by  the  district  court  without  a  jury 
in  which  an  issue  of  fact  has  been  joined  all  the  evidence  of- 
fered on  the  trial  shall  be  received.  All  testimony  which  eith- 
er party  desires  to  offer,  or  any  part  thereof,  may  at  his  option 
be  taken  by  dej)osition.  In  any  trial  under  the  provisions  of 
'this  section  either  party  may  have  his  objection  to  any  evidence 
noted  as  the  evidence  is  offered.  Any  objection  so  made  may 
be  preserved  in  the  statement  of  the  case  herein  provided  for 
and  reviewed  in  the  supreme  court  upon  appeal;  but  if  no  ob- 
jection is  made  to  the  introduction  of  testimony  offered  on  the 
trial,  no  objection  to  its  consideration  can  be  urged  upon  its  re- 
view upon  appeal  in  the  supreme  court.  For  the  purpose  of 
reviewing  upon  appeal  questions  as  to  the  sufficiency  of  the  ev- 
idence to  sustain  the  findings  of  fact  in  any  action  tried  under 
the  provisions  of  this  section  a  statement  of  the  case  may  be 
prepared  and  settled  within  the  time  and  in  the  manner  pro- 
vided in  article  8  of  chapter  10  of  this  code,  which  statement 
ghall  contain  in  a  narrativ^e  form  without  unnecessary   repeti- 


254  CODE  OF  CIVIL  PROCEDURE. 

tion  all  the  evidence  offered  at  the  trial.  The  supreme  court 
shall  try  the  case  anew  and  render  final  judgment  therein  ac- 
cording to  the  justice  of  the  case.  (Sec.  1,  chap.  82,  laws 
1893,  N.  D.  am'd  Rev.  Com'rs.) 

Consult  sec.  5464,  to  5469,  Rev.  Codes,  N.  D.  pp.  66  to  75,  ante.,  as  to  set- 
tlement of  statements. 

PRINTED  ABSTRACTS  AND  BRIEFS,  WHEN  NOT  REQUIRED- 
TYPEWRITTEN  COPIES.  §  5631  Rev.  Codes  N.  D.  In  civil  ac- 
tions appealed  to  the  supreme  court  in  which  the  amount  of  the 
judgment  appealed  from,  exclusive  of  costs,  does  not  exceed 
two  hundred  dollars  no  printed  abstracts  or  briefs  shall  be  re- 
quired of  either  party;  but  in  case  printed  copies  of  the  same 
are  not  furnished  three  typewritten  copies  thereof  shall  be  filed 
with  the  clerk  of  the  supreme  court  at  such  time  as  may  be  re- 
quired by  law  or  the  rules  of  such  court.  (Adopted  through 
Rev.  Com'rs.) 

Consult  Supt.  Ct  Rules  16,  18,  19,  22,  N.  D.;  Rules  12,  14,  15,  18, 
S..  D.  Post. 

CIVIL  CASES,  WHEN  HEARD  AT  NEXT  TERM.  §  5632  Rev, 
Codes  N.  D.  Unless  continued  for  cause  all  civil  cases  ap- 
pealed to  the  supreme  court  shall  be  heard  at  the  next  succeed- 
ing term  of  court  in  either  of  the  cases  following. 

1.  When  the  appeal  is  taken  sixty  days  before  the  first 
day  of  the  term. 

2.  When  by  either  party  a  printed  abstract  and  a  printed 
brief  are  served  twenty-five  days  before  the  first  day  of  the 
term.     (Sec.  1,  chap.  107,  laws  1895,  N.  D.) 


CHAPTER  X. 


Chap.   2,   Code  of  Civil  Procedure. 
of  the  supreme  court. 

JURISDICTION— TWO   KINDS.     §    4819,    Comp.    Laws.     The 
jurisdiction  of  the  supreme  court  is  of  two  kinds. 


OF  THE  SUPREME  COURT.  255 


1.  Original;  and, 

2.  Appellate. 

Sec.  20  C.  C.  P.;  Levisee  p.  4;  Harst  Pr.  Deer.  Code  §  42. 

Consult,  for  constitutional  provisions,  and  decisions  thereunder,  sec. 
5213,  Comp.  Laws;  sec.  5603,  Rev.  Codes,  N.  D.,  at  commencement  of 
chapter  9,  ante. 

ORIGINAL  JURISDICTION.  §  4820  Comp.  Laws.  Its  original 
jurisdiction  extends  to  all  writs  which  by  law  may  issue  from 
this  court,  and  to  all  writs  necessary  to  the  exercise  of  its  ap- 
pellate jurisdiction. 

Sec.  21  C.  C.  P.;  Levisee  p.  4;  Harst.  Pr.  Deer.  Code  g  43,  60,  5L 

Consult  references  given  under  preceding  section. 

SAME— ORIGINAL  AND  APPELLATE— CLASSIFICATION  OF  WRITS. 
§  5165  Rev.  Codes  N.  D.  The  supreme  court  shall  have  and 
exercise  appellate  jurisdiction  only,  except  whien  otherwise 
specially  provided  by  law  or  the  constitution.  The  supreme 
court  has  power  in  the  exercise  of  its  original  jurisdiction  to  is- 
sue writs  of  habeas  corpus,  mandamus,  quo  warranto,  certior- 
ari and  injunction;  and  in  the  exercise  of  its  appellate  jurisdic- 
tion and  in  its  superintending  control  over  inferior  courts  it 
may  issue  such  original  and  remedial  writs  as  are  necessary  to 
the  proper  exercise  of  such  jurisdiction;  provided,  that  said 
court  shall  exercise  the  said  original  jurisdiction  only  in  habeas 
corpus  cases  and  in  such  cases  of  strictly  public  concern  as  in- 
volve questions  affecting  the  sovereign  rights  of  the  state  or  its 
franchises  or  privilege.     (Sec.  1,  chap.    118,  laws  1891,  N.  D.) 

Consult  references  given  under  sec.  4819,  Comp.  Laws,  supra. 

TERMS— CALENDAR-RULES— SECOND  APPEAL— OFFICIAL  A 
PARTY.  §  4821  Comp.  Laws.  The  supreme  court  shall  annu- 
ally hold  two  terms  of  such  court  at  the  seat  of  government  on 
the  lirst  Tuesdays  of  April  and  October,  and  at  no  other  place. 
The  court  may  provide  what  causes  shall  have  a  preference  on 
the  calendar,  and  regulate  the  practice  and  proceedings  therein 
by  general  rules  not  inconsistent  with  the  constitution  of  the 
state  of  South  Dakota  and  statutes  of  this  state.  On  a  second 
and  each  subsequent  appeal  to  the  supreme  court,  or  when  an 
9.ppeal  has  once  been  dismissed  for  defect  or  irregularity,   the 


256  CODE  OF  CIVIL  PROCEDURE. 

cause  shall  be  placed  upon  the  calendar  as  of  the  time  of  filing 
the  first  appeal;  and  whenever,  in  any  action  or  proceeding  in 
which  the  state  of  South  Dakota,  or  any  state  officer,  or  any 
board  of  state  officers,  is  or  are  sole  plaintiff  or  defendant,  an 
appeal  has  been  or  shall  be  brought  from  any  judgment  or  or- 
der for  or  against  him  or  them,  in  any  court,  such  appeal  shall 
have  a  preference  in  the  supreme  court,  and  may  be  moved  by 
either  party  out  of  the  order  on  the  calendar.  (Sec.  24.  C.  C, 
P.,  ani'd,  sec.  1,  chap.  73,  Laws  1890.) 

Sec.  24  C.  C,  p.;  Levisee  p.  7;  Wait's  Code  §  13. 

Consult  Sup.  Ct.  Rules  8  and  9,  Post;  sec.  5172,  Rev.  Codes,  N.  D.,  in- 
fra. 

SAME— TERMS.  Sec.  377  Rev.  Codes  N.  D.  There  shall  be 
two  general  terms  of  the  supreme  court  held  each  year  at  the 
seat  of  government,  as  follows:  One  on  the  first  Tuesday  in 
April  and  one  the  first  Tuesday  of  October  of  each  year.  (Sec. 
1,  chap.  108,  Laws  1895,  N.  D.) 

Consult  following'  section. 

SPECIAL  TERM— JUDGES  APPOINT— NOTICE  OF.  §  378,  Rev. 
Codes  N.  D.  Whenever  from  any  cause  it  appears  to  a  major- 
ity of  the  judges  of  said  court  that  the  public  interests  demand 
that  a  special  term  of  said  court  be  held,  the  majority  of  the 
said  judges  have  authority  to  appoint  a  special  term  of  the  su- 
preme court  to  be  held  at  the  seat  of  government,  giving  twen- 
ty day's  previous  notice  thereof  by  advertisement  published  in 
a  newspaper  at  the  seat  of  government  of  the  state.  (Sec.  2, 
chap.  169,  Laws  1890;  am'd  sec.  2,  chap.  108,  Laws  1895,  N.  D. ) 

Consult  preceding  section. 

SECOND  APPEAL— PLACE  ON  CALENDAR— OFFICIAL  A  PARTY.  § 
5172  Rev.  Codes  N.  D.  On  a  second  and  each  subsequent  ap- 
peal to  the  supreme  court  or  when  an  appeal  has  once  been  dis- 
missed for  defect  or  irregularity,  the  cause  shall  be  placed 
upon  the  calendar  as  of  the  time  of  filing  the  first  appeal;  and 
whenever  in  any  action  or  proceeding  in  which  the  State  of 
North  Dakota,  or  any  state  officer  or  any  board  of  state  officers 
is  or  are  sole  plaintiff  or  defendant,  an  appeal  has  been  or  shall 
be  brought  from  any  judgment  or  order  for  or  against  him  or 


OF  THE  SUPREME  COURT.  257 


them  in  any  court,  such  appeal  shall  have  a  preference  in  the 
supreme  court  and  may  be  moved  by  either  party  out  of  the 
order  on  the  calendar.     (Sec.  24,  C.  C.  P. ) 

Consult  sec.  4821,  Comp.  Laws,  siqiva;  Supt.  Ct.  Rules,  Post. 

ADJOURNMENT— JUDGE  OR  CLERK  ADJOURNS  TERM,  WHEN. 
§  5170  Rev.  Codes  N.  D.  If  any  two  judges  of  said  court 
shall  not  attend  on  the  first  or  on  any  other  day  of  the 
term,  the  clerk  shall  enter  such  fact  on  record,  and  the  judge 
present  shall  adjourn  the  court  to  the  next  day  and  so  on  from 
day  to.  day  for  six  days,  if  neither  of  the  absent  judges  appear; 
at  the  end  of  which  period  said  court  shall  be  adjourned,  and 
all  matters  pending  therein  shall  stand  continued  until  the  next 
regular  or  special  term.  If  none  of  the  judges  appear,  the 
clerk  of  said  court  may  adjourn  from  day  to  day  as  provided 
in  this  section.     (Sec.  5,  chap.  118,  laws  1891,  N.  D. ) 

Consult  sec.  378,  Rev.  Codes,  N.  D.  supra. 

CAUSES  STAND  OVER,  WHEN— NO  TERM— CONTINUANCE  OF. 
§  5171  Rev,  Codes  N.  D.  Whenever  there  is  no  general 
term  of  said  court  at  the  time  fixed  therefor  by  law  for  any 
cause,  or  whenever  there  is  a  continuance  of  the  term  of  said 
court  or  a  change  in  the  time  of  holding  any  term  by  act  of  the 
legislative  assembly,  all  causes  then  upon  the  calendar  of  said 
court,  all  w^rits,  recognizances,  appeals  and  proceedings  com- 
menced, taken  or  made  returnable  tcf  said  court  at  said  term 
shall  stand  over  to  and  be  heard  at  the  next  general  term  with 
like  effect  as  if  no  such  failure,  continuance  or  change  had 
occurred.     (Sec.  6,  chap.  118,  laws  1891,  N.  D.) 

Consult  sec.  4821,  Comp.  Laws,  sees.  378,  5172,  Rev.  Codes,  N.  D. 
supra. 

EXECUTES  JUDGMENTS— PRESCRIBES  RULES— PUBLICATION 
OF.  §  5168  Rev.  Codes  N.  D.  Said  court  is  vested  with 
full  power  and  authority  necessary  for  carrying  into  com- 
plete execution  all  its  judgments,  decrees  and  determina- 
tions in  the  matters  aforesaid  and  for  the  exercise  of  its 
jurisdiction  as  the  supreme  judicial  tribunal  of  the  state;  and 
shall  by  order  made  at  general  or  special  term  from  time  to 
17— T  P 


258  CODE  OF  CIVIL  PROCEDURE. 

. . • 

time  make  and  prescribe  such  general  rules  and  regulations  for 
the  conduct  and  hearing  of  causes  in  said  court,  not  inconsis- 
tent with  the  statute  law  of  the  state,  as  it  may  deem  proper; 
and  the  said  court  shall  by  order  prescribe  the  manner  of  pub- 
lication at  the  expense  of  the  state  of  such  rules  and  regula- 
tions; and  the  same  shall  not  be  in  force  until  thirty  days  after 
the  publication  thereof.  (Sec,  3.  chap.  118,  laws  1891,  N.  D. ) 
Consult  sec.  4821,  Comp.  Laws,  supra. 

JUDGMENT— TWO  JUDGES  MUST  GONCUR—REHEARINGS— 
§  4822  Comp.  Laws.  The  concurrence  of  two  judges  is 
necessary  to  pronounce  a  judgment.  If  two  do  not  concur  the 
cause  must  be  reheard.  But  no  more  than  two  rehearings  shall 
be  had;  and  if  on  the  second  hearing  two  judgts  do  not  concur, 
the  judgment  shall  be  afl&rmed.     (Sec.  25,  C.  C.  P.) 

SAME.  §  5173  Rev.  Codes  N,  D.  The  concurrence  of  a 
majority  of  the  judges  is  necessary  to  pronounce  judgment. 
If  a  majority  does  not  concur  the  case  must  be  reheard.  But 
no  more  than  two  rehearings  shall  be  had;  and  if  on  the  sec- 
ond rehearing  a  majority  of  the  judges  does  not  concur,  the 
judgment  shall  be  affirmed.  (Sec.  25,  C.  C.  P,  am'd  Rev. 
Com'rs. ) 

Levisee,  r.  7;  Wait's  Code,  sees.  14,  19;  Harst,  Pr.  Deer.  Code,  sec.  47. 

Consult  sec.  4821,  5238,  Comp.  Laws,  sec.  5628,  Rev.  Codes,  N.  D.  supra. 

COURT  HELD  IN  OTHER  BUILDINGS,  ETC.— ADJOURNMENTS. 
§  4823  Comp.  Laws;  §  5174  Rev.  Codes  N,  D.  The  supreme 
court  may  be  held  in  other  buildings  than  those  designated  by 
law  as  places  for  holding  courts,  and  at  a  different  place  in  the 
same  city  from  that  at  which  it  is  appointed  to  be  held.  Any 
one  or  more  of  the  justices  may  adjourn  the  court  with  the 
like  effect  as  if  all  were  present,  and  may  announce  and  have 
placed  on  file  the  opinion  of  the  court,  ( Sec.  26,  C.  C,  P. , 
am'd  sec.  1,  chap.  53,  laws  1879,  Dak. ) 

[Sec.  5174,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  concluding 
sentence  is  omitted.  (Sec.  26,  C.  C.  P.,  am'd  sec.  1,  chap.  53,  laws  1879^ 
Dak,,  am'd  Rev,  Com'rs.)  ] 

COURT  ALWAYS  OPEN  FOR  WHAT  PURPOSES— HABEAS  CORPUS 
—POWER  OF  DISTRICT  JUDGE.     §  5166  Rev.    Codes  N,  D,     The 


OF  THE  SUPREME  COURT.  259 

supreme  court  shall  be  always  open  for  the  issue  and  return 
of  all  writs  and  process  which  it  may  lawfully  issue  and  for  the 
hearing  and  determination  of  the  same,  subject  to  such  regula- 
tions and  conditions  as  the  court  may  prescribe.  And  any 
judge  of  said  court  may  order  the  issuance  of  any  such  writ  or 
process,  and  prescribe  the  time  and  manner  of  service  and  the 
time  and  place  of  return  of  the  same;  provided,  that  in  cases  of 
habeas  corpus  the  judge  of  the  supreme  court  who  issues  or 
causes  the  writ  to  issue  may,  at  his  discretion,  direct  that  the 
writ  shall  be  made  returnable  and  heard  and  determined,  either 
before  the  supreme  court  or  any  judge  thereof,  or  before  any 
district  court  of  the  state  or  any  judge  of  any  district  court  of 
the  state;  provided,  further,  that  any  district  court  or  judge 
thereof  before  whom  any  writ  is  made  returnable  as  prescribed 
in  this  section  is  hereby  vested  with  full  power  and  authority 
necessary  for  carrying  into  complete  execution  all  of  its  judg- 
ments, decrees  and  determinations,  subject  to  appeal  as  pro- 
vided bylaw.     (Sec.  2.  chap.  118,  laws  1891,  N.  D.) 

Sec.  87,  Constitution,  N.  D. 

Consult  constitutional  provisions  under  sec.  5213,  Comp.  Laws;  sec. 
5603,  Rev.  Codes,  N.  D.  at  beginning-  of  chapter  6,  ante. 

DECISIONS  IN  WRITING— WHEN  FILED -JUDGMENT-SYLLABUS. 

§  5169  Rev.  Codes  N.  D.  The  said  court  shall  in  all  cases  decided 
by  i\  give  its  decision  in  writing,  which  shall  be  filed  with  the 
clerk  of  said  court  with  the  other  papers  in  the  case.  Decis- 
ions in  cases  heard  at  a  general  or  special  term  and  all  orders 
affecting  the  same  may  be  filed  in  vacation,  and  judgment  en- 
tered thereon  in  pursuance  of  the  finding  and  order  of  the  court 
■with  the  same  effect  as  upon  decisions  made  and  filed  in  term. 
Said  court  at  the  time  of  announcing  its  decisions  in  any  action 
determined  by  said  court  shall  file  with  the  clerk  thereof  a  syl- 
labus of  the  decision  in  such  action,  so  prepared  as  to  embody 
as  briefly  as  practicable  the  principles  settled  in  and  by  such 
decision.     (Sec.  4,  chap.  118,  laws  1891,  N.  D. ) 

Consult  sees,  4822,  Comp.  Laws;  sees.  5173,  Rev.   Codes,   N.    D.  supra. 

ISSUE  OF  FACT,  SENT  TO  JURY— HOW  DETERMINED.  §  5167 
Rev.  Codes  N.  D.     Whenever  an  issue  of  fact  shall  be  joined  or 


260  COUNTY  COURTS — SOUTH  DAKOTA. 

assessment  of  damages  by  a  jury  be  necessary  in  any  action 
or  proceeding  commenced  in  the  supreme  court  the  court  may, 
in  its  discretion,  send  the  same  to  some  district  court,  and  it 
shall  be  there  determined  in  the  same  manner  as  other  issues 
of  fact  are  tried  or  assessments  made  and  return  be  made 
thereof  as  directed  by  the  supreme  court.  In  such  cases  the 
supreme  court  may  order  a  special  verdict  to  be  found  and  re- 
turned.    (Adopted  through  Rev.  Com'rs. ) 

[Author's  Note.  This  section  does  not  properly  belong  in  this  book, 
as  it  pertains  exclusively  to  the  original  jurisdiction  of  the  supreme  court, 
but  is  inserted  for  tlie  reason  that  all  other  sections  of  the  chapter  of  which 
it  forms  a  part  are  published  in  this  chapter.] 

Consult  constitutional  provisions  under  sec.  5603,  Rev.  Codes,  N.  D.  at 
commencement  of  chap.  9,  ante. 


CHAPTER  XI. 


COUNTY  COURTS— SOUTH  DAKOTA. 

[Author's  Note.  Owing  to  the  dissimilarity  between  the  respective 
chapters  upon  county,  probate  and  justice  courts,  in  the  laws  of  the  two  states, 
it  is  deemed  admissable  to  publish  each  set  of  laws  by  itself  in  a  separate 
chapter,  and  that  plan  is  accordingly  followed  in  this  instance,  and  in  the 
chapters  in  justices'  and  probate  codes,  the  provisions  of  the  respective  acts 
being  inserted  completely,  so  far  as  to  embrace  the  subjects  of  trial  and  ap- 
pellate procedure.     See  chap.  12,  Post,  as  to  county  court,  N.  D.] 

An  Act,  defining  the  jurisdiction  of  the  County  Courts,  providing 
for  the  practice  therein,  and  fixing  the  terms  and  the  salary  of  the 
judges  thereof;  being  chap.  78,  laws  1890,  S.  D. 

For  the  provisions  of  the  North  Dakota  laws  governing  practice  in 
county  court,  see  chap.  12,  Post. 

A  COURT  OF  RECORD— STYLE— SEAL  Seel.  That  there  shall 
be  in  each  of  the  counties  of  this  state,  now  organized,  or 
which  may  hereafter  be  created  and  organized,  a  court  of  rec- 
ord to  be  styled  the  County  Court  of  County;  and 

said  court  shall  have  a  seal. 

Confcult  sections  4  to  7,  infra. 


COUNTY  COURTS— SOUTH  DAKOTA.  261 

COMMON  LAW  JURISDICTION—NATURALIZATION.  Sec.  4. 
Said  court  shall  have  common  law  jurisdiction,  as  provided 
herein,  and  shall  have  jurisdiction  in  all  matters  pertaining  tO' 
the  naturalization  of  citizens,  pursuant  to  the  laws  of  congress- 
relating  thereto,  and  in  all  such  other  cases  as  are  now  or  may 
hereafter  be  provided  by  law. 

Consult  two  following  sections,  and  decisions  and  constitutional  pro- 
visions thereunder. 

Of  Limited  Jurisdiction.  The  county  courts  of  this  state  are  courts 
of  limited  and  special  jurisdiction.  Ayers,  Weatherwax  &  Reid  Co.  v. 
Sundback,  sheriff,  5  S.  D.  31,  58  N.  W.  4;  Nelson  v.  Ladd,  4  S.  D.  1,  54  N. 
W.  809.  Validity  of  Proceedings— Presumption.  As  to  courts  of  limited 
or  special  jurigdiction,  it  is  only  after  jurisdiction  is  affirmatively  shown 
that  the  presumption  of  the  validity  and  regularity  of  their  proceedings 
attaches.  Ayers,  Weatherwax  &  Keid  Co.  v.  Sundback,  sheriff,  supra.; 
Black  Judgm.  see.  282;  Cooper  v,  Sunderland,  3  la.  114;  Wilkinson  v. 
Moore,  79  Ind.  397;  Henry  v.  Estes,  127  Mass.  474. 

Voluntary  Appearance — Record  of  Summons.  Whether  the  volun- 
tary appearance  of  a  defendant  in  such  court  does  away  with  necessity  for 
summons  as  part  of  judgment  roll,  as  against  rights  of  a  stranger,  quaere. 
Ayers,  Weatherwax  &  Co.  v.  Sundback,  supra.  Waiver  of  Objection  to 
Jurisdiction.  The  objection  that  the  court  has  not  jurisdiction  of  theaclion 
is  not  waived  by  failure  to  demur  to  the  complaint  upon  that  ground,  in  the 
court  below,  and  may  be  taken  at  any  time,  either  in  the  trial  court,  or  in 
this  court  on  appeal.  Nelson  v.  Ladd  et  al,  4  S.  D.  1,  54  N,  W.  809;  12  Am. 
&  Eng.  Ency.  Law,  p.  306;  Coleman's  Appeal,  75  Pa.  St.  441;  Doctor  v. 
Hartman,  74  Ind.  221;  Mathie  v.  Mcintosh,  40  Wis.  120;  Thompson  v. 
Steamboat,  2  Ohio  St.  2G;  Riley  v.  Lowell,  117  Mass.  76. 

Judicial  Notice  of  Inferior  Courts  —  Limit  of  Jurisdiction.  This 
court  will  take  judicial  notice  of  the  organization,  jurisdiction,  and  judges  of 
inferior  courts  within  its  jurisdiction,  established  under  general  laws,  and 
that  the  jurisdiction  of  the  county  court  of  Moody  county  is  limited  to 
actions  in  which  the  debt,  damage,  claim,  or  value  of  the  property  involved 
does  not  exceed  ^00.  Nelsonv.  Ladd  et  al.  4  S.  D.  1,  54  N.  W.  809.  When 
in  an  action  commenced  in  the  county  court  of  Moody  county,  plaintiff 
claimed  damages  in  $500  and  interest  for  nearly  one  year,  the  amount 
claimed  exceeds  $500,  and  that  court  has  no  jurisdiction  of  the  action.  Nel- 
son v.  Ladd  et  al,  supra;  Plunkett  v.  Evans,  2  S.  D.  484,  50  N.  W.  561;   Ball 

v.    Biggam   (Kan.),   23  Pac.  565;  State   v.    Bunker, S.  D ,   65  N. 

W.  33..    It  will  also  take  judicial  notice  that  Brown  county  has  a  population 
of  less  than  20,000,  and  the  county  court,  therefore,  has  been  deprived  of  its 

jurisdiction  over  the  prosecution  of  bastardy  cases.     State  v.  Bunker, S.. 

D ,65  N.  W.  33. 


262  COUNTY  COURTS — SOUTH  DAKOTA. 

Adoption  of  Infant — Jurisdiction.    In  Bichards  t.  Matteson  et  al, 

S.  D ,  65  N.  W.  428,   involving  the   power  of  the  circuit  court  to 

make  an  order  for  adoption  of  an  illegitimate  infant,  the  jurisdiction  of  the 
county  court  in  like  premises,  in  absence  of  facts  showing  jurisdiction  of 
circuit  court,  is  recognized. 

ORIGINAL  JURIS 01 GTIOIV,  IN  WHAT  CASES— PROBATE  PRO- 
CEEOINGS  TO  CONFORM.  Sec.  5.  They  shall  have  original  jur- 
isdiction in  the  probate  of  wills;  the  administration  and  set- 
tlement of  estates  of  deceased  persons;  the  guardianship  of 
minors,  insane  or  incompetent  persons  and  idiots,  and  in  pro- 
ceedings by  executors,  administrators  and  guardians  for  the 
sale  of  real  estate  for  the  purposes  authorized  by  law,  and  all 
the  power  and  jurisdiction  conferred  by  law  upon  the  late 
probate  court  and  the  judge  thereof,  with  power  to  prescribe 
rules  governing  the  proceedings  in  probate  matters  to  con- 
form to  the  provisions  of  the  laws  of  this  state  relating  to  the 
organization  of  the  county  court. 

Consult  preceding,  and  following  sections,  and  constitutional  provis- 
ions under  latter;  and  various  provisions  of  Probate  Code  upon  the  subjects 
mentioned  in  this  section,  and  particularly  sec.  1,  Prob.  Code;  sec.  5650, 
Com  p.  Laws,  Levisee,  p.  199. 

CONCURRENT  WITH  CIRCUIT  COURT,  IN  WHAT  CASES— 
CLASSED  ON  POPULATION.  Sec.  6.  They  shall  have  concurrent 
jurisdiction  with  the  circuit  courts  in  all  that  class  of  cases 
wherein  justices  of  the  peace,  have  now,  or  may  hereafter 
have  jurisdiction,  the  amount  thereof  being  limited  accord- 
ing to  the  population  of  the  counties  as  follows:  In  counties 
where  the  population  is  ten  thousand  or  more,  they  shall  have 
jurisdiction  in  such  cases  when  the  debt,  damage,  claim  or 
value  of  the  property  involved,  shall  not  exceed  one  thousand 
dollars,  and  in  all  other  counties  where  the  debt,  damage, 
claim  or  value  of  the  property  involved,  shall  not  exceed  live 
hundred  dollars;  Provided,  however,  they  shall  not  have  juris- 
diction in  actions  for  forcible  entry  and  detainer.  The  popu- 
lation aforesaid  shall  be  determined  as  hereinafter  provided 
in  the  matter  of  fixing  the  salaries  of  county  judges. 

Consult  two  preceding  sections,  and  decisions  under  sec.  4;  sec  6042, 
Ck)mp.  Laws. 


COUNTY  COURTS— SOUTH  DAKOTA.  263 


The  following-  provisions  are  found  in  Art.  5,  Constitution  of  South 
Dakota: 

Sec.  20.  County  courts  shall  be  courts  of  record  and  shall  have  origin- 
al jurisdiction  in  all  matters  of  probate  guardianship  and  settlement  of  es- 
tates of  deceased  persons,  and  such  other  civil  and  criminal  jurisdiction  as 
may  be  conferred  by  law;  Provided,  that  euch  courts  shall  not  have  jur- 
isdiction in  any  case  where  the  debt,  damage,  claim  or  value  of  property 
involved  shall  exceed  one  thousand  dollars  except  in  matters  of  probate, 
guardianship  and  the  estates  of  deceased  persons.  Writs  of  error  and  ap- 
peal may  be  allowed  from  county  to  circuit  courts,  or  to  the  supreme  court, 
in  such  cases  and  in  such  manner  as  may  be  prescribed  by  law;  Provided, 
that  no  appeal  or  writ  of  error  shall  be  allowed  to  the  circuit  court  from 
any  judgment  rendered  upon  an  appeal  from  a  justice  of  the  peace  or  police 
magistrate  for  cities  or  towns. 

Sec.  21.  The  county  court  shall  not  have  jurisdiction  in  cases  of  fel- 
ony, nor  shall  crimiTial  cases  therein  be  prosecuted  by  indictment;  but  they 
may  have  such  jurisdiction  in  criminal  matters,  not  of  the  grade  of  felony, 
as  the  legislature  may  prescribe,  and  the  prosecutions  therein  may  be  by 
information  or  otherwise  as  the  legislature  may  provide. 

Sec.  34.  All  laws  relating  to  courts  shall  be  general  and  of  uniform 
operation  throughout  the  state,  and  the  organization,  jurisdiction,  power 
proceedings  and  practice  of  all  the  courts  of  the  s^ame  class  or  grade,  so  far 
as  regulated  by  law,  and  the  force  and  effect  of  the  proceedings,  judgments 
and  decrees  of  such  courts  severally  shall  be  uniform;  Provided,  hmcever, 
that  the  legislature  may  classify  the  county  courts  according  to  the  popula- 
tion of  the  respective  counties  and  fix  the  furisdiction  and  salary  of  the 
judges  thereof  accordingly. 

Section  Construed — Jurisdiction  Over  Subject-Matter  and  Parties. 
By  the  provisions  of  sec.  6,  chap.  78,  1890,  defining  the  jurisdiction  of  coun- 
ty courts,  and  limiting  it  to  "all  that  class  of  cases  wherein  justices  of  the 
peace  now  have,  or  may  hereafter  have  jurisdiction,  the  amount  thereof  be- 
ing limited  according  to  the  population  of  the  counties,"  the  jurisdiction  of 
such  county  courts  is  not  only  limited  as  to  subject-matter  of  the  action 
over  which  justices  of  the  peace  have  jurisdiction,  but  to  the  jurisdiction  of 
justices'  courts  over  the  parties  to  the  action.  Benedict  v.  Johnson,  4  S.  D. 
387,  57  N.  W.  66. 

Bastardy  Proceedings— Constitutional  Provisions— Act  of  1893. 
The  provisions  of  chap.  24,  laws  1893,  confei-ring  jurisdiction  in  bastardy 
proceeding  upon  county  courts,  are  not  in  conflict  with  the  provisions  of 
sec.  20,  21,  art.  5,  of  the  state  constitution,  limiting  the  jurisdiction   that 

may  be  conferred  upon  such  courts.     State  v.  Scott,  ...  S.  D 65  N.  W. 

31;  Smith  v.  State,  73  Ala.  11;  Holcomb  v.  People,  79  111.  409;  In  re  Lee» 
41  Kan.  318,  21  Pac.  282;  Cummings  v.  Hodgdon,  13  Mete.  246;  People  v. 


264  COUNTY  COURTS — SOUTH  DAKOTA. 

Smith,  6.5  Mich.  1,  31  N.  W.  699:  VanTassel  v.  State,  59  Wis.  3ol,  18  N.  W. 
328;  Davis  v.  State,  58  Ga.  171;  Wm.  H.  T.  v.  State,  18  Fla.  883;  Devinney 
V.  State,  Wright  (Ohio),  564;  3  Enc.  Prac.  &  PL,  p.  268.  The  provisions  of 
chap.  24,  laws  1893,  are  not  in  conflicfwith  sec.  20,  21,  art.  5,  state  consti- 
tution.    State  V.  Bunker S.  D ,  65  N.  W.  b3.     Bastardy— State  as 

Plaintiff.  Proceedings  in  bastardy  cases  are  properly  instituted  and  car- 
ried on  in  the  name  of  the  state.     State  v.  Bunker, S.  D 65  N.  W.  33. 

Btistardy— Preponderance  of  Evidence  to  Convict.  On  the  trial  of  bastardy 
cases  under  the  statute,  it  is  sufficient  for  the  state  to  prove  its  case  by  a  pre- 
ponderance of  evidence.     State  v.  Bunker,   S.  D ,  65  N.  W.  33;  Alt- 

schuler,  v.  Algaza  (Neb.)  21  N.  W.  401;  Lewis  v.  People,  82  111.  104; 
Strickler  v.  Grass  (Neb.)  49  N.  W.  804;  Harper  v.  State,  101  Ind.  109; 
State  V.  Romaine,  58  la.  46, 11  N.  W.   721;  Robbins  v.   Smith,  47  Ct.  182. 

JURISDICTION  IN  CRIMINAL  CASES— FINES,  ETC.  Sec.  7. 
They  shall  have  concurrent  jurisdiction  in  all  criminal  offenses 
and  misdemeanors  where  the  punishment  is  not  imprisonment 
in  the  penitentiary  or  death,  or  where  the  judgment  may  be  a 
removal  from,  or  forfeiture  of,  office.  They  have  also  power 
to  remit  fines,  forfeitures  and  recognizances  and  to  accept  and 
approve  the  same  as  provided  for  by  law. 

Consult  preceding  section,  and  constitutional  provisions  and  decisions 
under  same,  and  sec.  4;  sec.  6043,  Comp.   Laws.     See  as  to  jurisdiction  in 

bastardy  cases,  State  v.  Scott S.  D ,65  N.  W.  31;  State  v.  Bunker, 

S.  D ,65  N.  W.  33,  cited  under  preceding  section. 

ISSUE  NECESSARY  WRITS.  Sec.  8.  They  shall  have  the 
power  and' authority  to  issue  all  writs  necessary  to  carry  into 
effect  their  judgments,  decrees  and  orders. 

•    Consult  constitutional  provisions  under  sec.   6,   supra:,  also,   sec.    6596, 
Rev.  Codes,  N.  D.,  next  chapter 

CONCURRENT  APPELLATE  JURISDICTION,  FROM  JUSTICES  AND 
MAGISTRATES— APPEALS.  Sec.  9.  They  shall  have  jurisdiction 
concurrent  with  the  circuit  courts  in  appeals  from  all  final 
judgments  of  justices  of  the  peace  or  police  magistrates  for  cit- 
ies or  towns,  and  the  proceedings  on  such  appeal  shall  be  the 
same  as  now  provided  for  appeals  from  judgments  of  justices 
of  the  peace  to  the  circuit  court. 

Consult  chapter  18,  on  appeals  from  justice's  court,  sec.  6129  to  6135, 
Comp.    Laws,  Post;  sec.  933,  Comp.  Laws. 

Power  of  County  Court  on  Appeal,  on  Law  Only.  Upon  appeal 
from  justice  to  county  court  on  questions  of  law  only,   the  appellate  court 


COUNTY  COURTS — SOUTH  DAKOTA.  265 

may  "set  aside,  affirm,  or  modify"  the  judgment  appealed  from,  or  order  a 
new  trial  in  justice's  court;  but  it  cannot  in  such  case,  and  upon  the  state- 
ment provided  by  statute,  set  aside  the  judgment  appealed  from,  and  render 
a  new  judgment  on  the   merits  against  the  opposite   party.     Coughran  v. 

Wilson,  ....  S.  D ,  63  N.  W.  774;  sec.  6136,   Comp.    Laws;  Gonsolus  v. 

Lormer,  54  Wis.  630,  12  N.  W.  62;  Griffin  v.  Marquardt,  17  N.  Y.  28; 
Schroederv.  Versicherungs  Gesellschaft,  60  Cal.  467.  If,  in  such  case  and 
upon  such  statement,  the  appellate  court  finds  prejudicial  error,  it  should 
reverse  the  judgment,  and  remand  the  case  to  justice's  court  for  a  new 
trial.     Id. 

NEW  TRIALS— AFFIRM,  ETC.,  JUDGMENTS  BELOW— BILL  OR 
CASE.  Sec.  10.  They  shall  have  jurisdiction  to  grant  new 
trials,  affirm,  modify  or  set  aside  judgments  in  actions  tried  in 
such  courts  upon  a  bill  of  exceptions  or  case  made. 

Consult  preceding  section .  For  "Exceptions,"  see  chap.  7,  pp.  63  et 
seq.  ante,  and  "New  Trials,"  chap.  8,  pp.  77,  et  seq.  ante. 

APPEAL  TO  CIRCUIT  COURT,  IN  WHAT  CASES— PROCEDURE- 
CIRCUIT  TO  SUPREME,  WHEN.  Sec.  11.  An  appeal  may  be 
taken  to  the  circuit  court  from  a  judgment,  decree  or  order  of 
the  county  court  in  all  those  cases  enumerated  in  section  312  of 
the  Probate  Code  and  the  procedure  upon  such  appeals  shall 
be  the  same  as  is  provided  for  in  article  2,  of  the  Probate  Code; 
Provided,  however,  that  nothing  herein  shall  be  construed  to 
prevent  an  appeal  being  taken  to  the  Supreme  Court  from  the 
decisions  of  the  circuit  court  in  such  cases  upon  questions  of 
law  alone. 

See,  for  sec.  312,  Prob.  Code,  sec.  5962,  Comp.  Laws,  Levisee  p.  268; 
which  section  is  the  begin ing  of  art.  2  of  that  Code,  treating  of  appeals  from 
Probate  to  Circuit  Court. 

New  Trial  on  Appeal — Coiinty  Court  Judgment.  Where  the  ac- 
tion was  originally  commenced  in  justice  court,  where  plaintiff  recovered 
judgment,  defendant  appealed,  and  the  action  was  tried  anew  in  the  county 
court,  the  judgment  there  rendered  is  the  judgment  of  the  county  court, 
and  "may  be  enforced  in  the  same  manner  as  judgments  in  actions  com- 
menced therein."    Comp.  Laws,  sec.  6136;  Winton  v.    Knott,  sheriff S. 

D ,  63  N.  W.  783.     To  the  same  effect,   see  Winton  v.  Kirby  et  al, 

S.  D 64  N.  W.  528. 

APPEAL— WRIT  OF  ERROR— TO  SUPREME  COURT— WHAT 
CASES— PROCEDURE.     Sec.  12.     Appeals  from,  and  writs  of  er- 

m— TP 


266  COUNTY  COURTS — SOUTH  DAKOTA. 

ror  to  the  county  court  shall  be  allowed  to  the  supreme  court 
from  all  judgments,  orders  and  decrees  of  said  county  court,  ex- 
cept in  cases  enumerated  in  section  11.  hereof,  and  shall  be 
governed  by  the  law  of  appeals  as  provided  in  the  code  of 
Civil  Procedure  applicable  to  appeals  from  the  circuit  courts 
in  like  cases. 

Consult,  for  appeals  to  supreme  court  from  circuit  court,  sec.  5213, 
Comp.  Laws,  et.  seq.,  chap.  9,  ante;  and  for  writs  of  error,  see  see.  7499, 
Com  p.  Laws,  Post. 

PROCESS—PLEADINGS— PRACTICE  AND  PROCEDURE— AS  IN 
CIRCUIT  COURT— FORGE— EFFECT— CLERK'S  FEES.  Sec  13.  The 
process,  pleadings,  practice  and  modes  of  procedure  in  the 
county  courts  shall  be  the  same  as  provided  for  in  the  circuit 
courts  of  this  state  by  the  Code  of  Civil  Procedure,  or  as  may 
hereafter  be  provided  for  by  law,  and  the  process,  orders,  judg- 
ments and  decrees  of  such  county  courts  shall  have  the  same 
forms,  force,  lien  and  effect  as  in  the  circuit  court,  and  the 
clerks  of  said  county  courts  shall  charge  and  collect  like  fees 
in  the  county  courts  as  in  the  circuit  courts  for  similar  ser- 
vices. 

Sec.  5651,  Comp.  Laws,  sec.  2.  Prob.  Code,  Levisee,  p.  200.  And  con- 
sult sec.  6588,  Rev.  Codes  N.  D.,  at  beginning  of  following  chapter. 

The  following  is  sec.  307,  Prob.  Code,  S.  D.,  Levisee,  p.  266,  Sec.  5957, 
Comp.  Laws: 

"All  issues  of  fact  joined  in  the  probate  court  must  be  tried  by  said 
court,  and  in  all  such  proceedings  the  party  affirming  is  plaintiff,  and  the 
oiie  denying  or  avoiding  is  defendant.  After  the  hearing,  the  court  shall 
give,  in  writing,  the  findings  of  fact  and  conclusions  of  law.  Judgment* 
thereon,  as  well  as  for  costs,  may  be  entered  and  enforced  by  execution  or 
otherwise,  by  the  probate  court,  as  in  civil  actions.  If  the  issues  are  not 
sufficiently  made  up  by  the  written  pleadings  on  file,  the  court,  on  due  no- 
tice to  the  opposite  party,  must  settle  and  frame  the  issues  to  be  tried,  and 
upon  which  the  court  may  render  judgment." 

Jurisdiction  Over  Parties— Service  in  Other  County.  In  Benedict  v. 
Johnson,  4  S.  D.  387,  57  N.  W.  66,  it  was  objected  that  the  county  court  of 
Minnehaha  county  had  no  jurisdiction  over  the  defendant,  service  having 
been  made  in  Lincoln  county,  which  objection  was  held  good;  the  court  con- 
struing sections  6  and  13  of  chap.  78,  laws  1890,  to  that  effect. 

New  Trial  on  Appeal — Coiinty  Court  Judgnmentr— Execution.  Where 
the  action  was  tried  anew  in  county  court,  on  appeal  from  justice,  the  judg- 


COUNTY  COURTS — SOUTH  DAKOTA.  267 

ment  rendered  is  that  of  the  county  court,  and  "may  be  enforced  in  the 
same  manner  as  judgments  in  actions  commenced  therein/'    Com  p.  Laws, 

sec.  6136.     Winton  v.  Knott,  sheriff, S.  D ,  63  N.  W.  783.     In  such 

case  execution  may  issue  against  the  person  of  judgment  debtor,  where  the 
action  is  such  as  that  defendant,  against  whom  judgment  went  below,  might 
have  been  arrested  under  sec.  4945,  Comp.  Laws,  Id;  Miller  v.  Scherder,  2 
N.  Y.  264;  Parce  v.  Halbert,  1  How.  Pr.  235;  Parker  v.  Spear,  62  How.  Pr. 
394;  Kloppenberg  v.  Neefus,  4  Sanf.  655;  Philbrook  v.  Kellogg,  21 
Hun.  238. 

Change  of  Venue — Practice  Act  Not  Applicable.  The  provisions  of 
the  civil  practice  act  relating  to  change  of  place  of  trial  are  not  applicable 
to  actions  brought  in  the  county  courts.  Austin,  Tomlinson  &  Webster 
Mfg.  Co.  V.  Heiser  et  al, S.  D ,61  N.  W.  445. 

Defective  Complaint — Dismissal  as  to  One  Defendant.  In  an  action 
in  the  county  court,  where  summons  issued  against  two  defendants,  but  the 
complaint  only  states  a  cause  of  action  against  one,  that  defendant  is  not 
entitled  to  have  the  action  dismissed  as  to  him  solely  because  no  cause 
of  action  is  stated  against  his  co-defendant.     Austin,  Tomlinson  &  Webster 

Mfg.  Co.  v.  Heiser  et.  al., S.  D ,  61  N.  W.  445.   Variance.     Neither 

is  the  defendant  against  whom  the  cause  of  action  is  stated  entitled  to  a  dis- 
missal as  to  him,  upon  ground  of  variance  between  summons  and  com- 
plaint, when  both  contain  the  same  title.  Id.  Bank  v.  Kellogg,  4  S.  D.  312, 
56  N.  W.  1071.  Causes  of  Action — Separate  Statement — Remedy.  When 
several  causes  of  action  a-re  stated,  but  not  separately,  as  required  by  sec. 
4932,  Comp.  Laws,  a  motion  to  require  plaintiff  to  elect  upon  which  cause  of 
action  he  will  proceed  to  trial  cannot  be  sustained.  The  remedy  is  to  move 
at  proper  time  to  make  the  complaint   more  definite  and  certain.     Austin, 

Tomlinson  &   Webster  Mfg.    Co.   v.  Heiser  et  al, S.  D ,  61  N.  W. 

445;  Pom.  Rem.  &  Rem.  Rights,  sec.  447,  575,  and  cases  cited. 

PROSECUTION  BY  INFORMATION— ALLEGATIONS— PROCEDURE 
JUSTICES'  JURISDICTION.  Sec.  14.  All  offenses  of  which  the 
county  court  shall  have  jurisdiction  shall  be  prosecuted  by  in- 
formation of  the  state's  attorney  or  attorney  general,  and  every 
information  shall  set  forth  the  offense  with  reasonable  cer- 
tainty, substantially  as  required  in  an  indictment,  and  may  be 
filed  either  in  term  time  or  in  vacation,  and  the  proceedings 
thereon  shall  be  the  same  as  near  as  may  be,  as  upon  indict- 
ment in  the  circuit  court,  except  as  herein  otherwise  provided. 
Nothing  in  this  act  shall  be  construed  to  affect  the  jurisdiction 
of  justices  of  the  peace. 

See,  as  to  indictments,  sec,  7246,  Comp.  Laws,  et.  seq.,  sec.  214,  C.  Cr. 
Proc,  Levisee,  p.  1305,  et.  seq. 


268  COUNTY  COURTS — SOUTH  DAKOTA. 

And  consult  sec.  6606,  Rev.  Codes  N.  D.,  in  next  chapter,  and  decisions 
thereunder. 

For  the  act  of  1895,  S.  D.,  on  prosecutions  by  information,  see  chap.  64, 
Laws  1895,  p.  69;  from  which  the  following  sections  are  taken: 

"Sec.  4.  That  all  provisions  of  law  now  in  force  on  th9  statutes  of  this 
applying  to  prosecutions  upon  indictment,  to  writ  and  processes  therein, 
and  the  issuing  and  service  thereof  to  motions,  pleadings,  trials  and  punish- 
ments, or  the  execution  of  any  sentence  and  to  all  other  proceedings  in  cases 
of  indictment,  whether  in  courts  of  original  or  appellate  jurisdiction,  shall 
in  the  same  manner  and  to  the  same  extent  as  near  as  may  be,  apply  to  in- 
formations and  all  prosecutions  and  proceedings  thereon." 

See,  as  to  informations,  sec.  6602,  Rev.  Codes,  N.  D.,  next  chapter. 
"Sec.  8.  No  information  shall  be  filed  against  any  person  for  any 
offense  until  such  person  shall  have  had  a  preliminary  examination  thereof 
as  provided  by  law  before  a  justice  of  the  peace  or  other  examining  magis- 
trate or  officer,  unless  such  person  shall  waive  such  right;  Provided  however^ 
That  informations  may  be  filed  without  such  examinations  against  fugitives 
from  justice,  and  any  fugitive  from  justice  against  whom  an  information 
shall  be  filed  may  be  demanded  by  the  governor  of  this  state  of  the  execu- 
tive authority  of  any  other  state,  territory  or  of  any  foreign  government  in 
the  same  manner  and  the  same  proceedings  may  be  had  thereon  as  pro- 
vided by  law  in  like  cases  of  demand  upon  indictments  filed." 

Information— Burglary— Allegations  as  to  Degree.  Upon  appeal 
from  a  judgment  of  conviction  in  circuit  court,  -upon  an  information  for 
burglary,  under  sec.  3,  chap.  64,  Laws  1895,  S.  D.,  requiring  that  an  offense 
charged  in  an  information  "shall  be  stated  with  the  same  precision  and  ful- 
ness in  matters  of  substance,  as  is  now  required  in  indicting  in  like  cases," 
it  was  objected  that  the  information  was  deficient  in  not  stating  the  degree 
of  burglar}'  charged,  it  being  admitted  that  the  formal  parts,  and  the  par- 
ticular circumstances  of  the  offense  were  properly  charged.  Held,  That  the 
information  sufficiently  charged  the  cffense,  under  the  above  mentioned 
statute,  as  well  as  under  sec.  7249,  Comp.  Laws,  prescribing  the  manner  of 
charging  offenses  in  indictments,  though  the  degree  of  the  offense  is  not 
stated;  that  if  the  facts  constituting  a  public  offense  are  charged  in  ordi- 
nary and  concise  language,  so  that  a  person  of  common  understanding  may 
know  that  the  crime  described  is  burglary  in  the  third  degree,  the  informa- 
tion is  sufficient.  State  v.  LaCroix, S.  D ,  66  N.  W.  944.  Burg- 
lary— Ownership  of  Store — Allegations  and  Proof.  The  information 
charged  that  plaintiff  in  error  entered  "the  store  building  of  William  J. 
Hughes  and  Henry  Slechta,  partners  doing  business  in  the  firm  name  and 
style  of  Hughes  &  Slechta,"  it  appearing  that  the  firm  was  composed  of 
William  J.  Hughes  and  Christina  Slechta,  wife  of  Henry  Slechta,  and  that 
the  store  building,  occupied  by  said   firm  of   Hughes  &  Slechta,  was  owned 


COUNTY  COURTS — SOUTH  DAKOTA,  269 

by  a  third  party.  Held,  the  variance  between  the  allegations  and  proof  was 
immaterial,  and  motion  to  direct  eerdict  in  favor  of  defendant  was  properly 

overruled.      State   v.    LaCroix,    S.  D ,   66   N.    W.  944;   Abb.    Tr. 

Brief  (Cr.)  p.  411;  Coats  v.  State,  20  S.  W.  585;  State  v.  Emmons,  33  N.  W. 
672;  Smith  v.  State,  29  S.  W.  775:  Leslie  v.  State,  17  So.  55;  Winslow  v. 
State,  41  N.  W.  1116. 

Preliminary  Examination — Presumption.  It  will  be  presumed  on 
appeal,  in  absence  of  evidence  to  the  contrary,  in  favor  of  an  order  of  the 
court  below  overruling  an  unsupported  motion  to  set  aside  the  information, 
under  sec.  8,  chap.  64.  laws  1895,  S.  D.,  that  the  information  was  not  filed 
until  a  preliminary  examination  had  either  been  held  or  waived  by  defend- 
ant.    State  V.  LaCroix,  . . . .  S.  D 66  ^.  W.  944. 

Intoxicating  Liquors— Defective  Information.  Sec.  1,  chap.  101, 
laws  1890,  declares  that  "any  person  *  *  *  who  shall  sell  *  *  *  any  such 
intoxicating  liquors  as  a  beverage  shall,  for  the  first  offense,  be  deemed 
guilty  of  a  misdemeanor,"  etc.  An  information  charging  that  defendant 
"did  sell  intoxicating  liquors  maliciously  and  wilfully"  does  not  charge  an 
offense  under  that  section.  State  v.  Hafsoos,  1  S.  D.  382,  47  N.  W.  400;  1 
Whar.  Cr.  Law,  (5th  Ed.)  sec.  364;  Vanderwood  v.  State,  50  Ind.  26;  Com. 
V.  Byrnes,  126  Mass.  249. 

BAIL— COURT  OR  JUDGE  FIXES— ENDORSEMENT  OF.  Sec 
15.  The  court  in  term  time  or  the  judge  in  vacation,  shall  fix 
the  amount  of  bail  to  be  required  of  the  accused,  and  the  clerk 
shall  endorse  the  same  upon  the  warrant,  except  that  when  the 
warrant  is  issued  in  term  time,  the  same  may  be  made  return- 
able forthwith  when  it  shall  not  be  necessary  to  fix  the  amount 
of  bail  until  the  accused  is  brought  into  court. 

As  to  bail,  see  sec.  4959,  4960  and  7604,  et.  seq.,  Comp.  Laws,  sec.  163, 
C.  C.  P.,  Levisee,  p.  47;  sec.  552,  C.  Pr.  Proc,  Levisee,  p.  1350,  et.  seq. 

PLEA  OF  GUILTY— RECEIPT  OF— COURT  TRIAL,  WHEN— AT 
WHAT  TERM.  Sec.  16.  The  court  may  receive  the  plea  of 
guilty  and  pass  judgment,  or,  if  the  accused  will  waive  a  jury 
and  be  tried  by  the  court  without  a  jury,  the  court  may,  upon 
notice  being  first  given  to  the  state's  attorney,  try  the  cause 
and  pass  judgment  as  well  at  a  probate  as  a  law  term  of  said 
court. 

See,  as  to  plea  of  guilty,  sec.  277,  278,  C.  Cr.  Proc,  Levisee,  p.  1315, 
Comp.  Laws,  sec.  7304,  7305,  PosU  and  see  sec.  6605,  Rev.  Codes,  N.  D.,  next 
chapter. 


270  COUNTY  COURTS — SOUTH  DAKOTA. 


JUDGE  INTERESTED  OR  RELATED  TO  PARTY— CERTIFICATION 
TO  CIRCUIT  COURT.  Sec.  17.  Whenever  the  county  judge  of 
any  county  is  a  party  to  or  personally  interested  in  any  pro- 
ceeding in  any  probate  matter  therein  or  conn  acted  by  blood 
or  affinity  to  any  person  so  interested  nearer  than  the  fourth 
degree,  or  when  he  is  named  as  a  legatee  or  devisee,  or  execu- 
tor or  trustee  in  a  will  or  is  a  witness  thereto,  such  fact  or 
facts  shall  be  entered  upon  the  records  of  such  court  and  cer- 
tified to  the  circuit  court  of  such  county;  Provided,  That  in 
case  the  judge  is  interested  only  as  a  creditor,  no  change  need 
be  made  except  in  relation  to  his  claim. 

Consult  following  section. 

JURISDICTION  OF  CIRCUIT  COURT  ON  CERTIFIED  RECORD. 
Sec.  18.  Upon  the  filing  of  a  copy  of  such  certificate  in  the 
office  of  the  clerk  of  the  Circuit  Court,  such  circuit  court  shall 
have  full  and  complete  jurisdiction  in  all  matters  pertaining  to 
such  estate  and  may  make  all  orders  and  take  all  proceedings 
th'^rein,  which  might  have  beeu  made  or  taken  in  the  county 
court,  if  the  judge  thereof  had  not  been  irxterested  or  a  party 
as  aforesaid. 

Consult  preceding  section. 

CLERK  CIRCUIT  COURT— AUTHORITY  WHERE^RECORD  CERTI- 
FIED. Sec.  19.  In  all  cases  transferred  to  the  circuit  court 
under  the  two  preceding  sections,  the  clerkjof  such  court  shall 
have  the  same  authority  to  grant  citations,  and  letters  testa- 
mentary and  of  administration  in  vacation  as  is  given  to  clerks 
of  the  county  courts  and  such  authority  shall  be  exercised  by 
him  as  clerk  of  the  circuit  court. 

As  to  citations  generally,  see  sees.  302  to  305,  Prob.  Code,  Levisee  p. 
266;  Comp.  Laws,  sec.  .5952  to  5955. 

BIAS  OR  PREJUDICE  OF  JUDGE— TRIALlBYuADJOINING  JUDGE. 
Sec.  20.  In  any  civil  or  criminal  cause  of^which  this  court 
has  jurisdiction,  whenever  at  any  time  before  the  case  is 
called  for  trial  it  shall  appear  to  the  satisfaction  of  the  court 
by  affidavit,  or  if  the  court  should  so  order,  uponjother  testimony, 
that  a  fair  and  impartial  trial  cannot  be  had"in  such  court  by 
reason  of  the  bias  or  prejudice  of  the  judge  J|or  ^otherwise,  the 


COUNTY  COURTS — SOUTH  DAKOTA.  271 

court  shall  call  the  judge  of  the  county  court  of  any  adjoining 
county  to  try  such  cause. 

As  to  change  of  venue  in  civil  cases,  see  sees.  94,  95,  C.  C-  P.;  Levisee, 
p.  23;  sec.  4890,  4891  Comp.  Laws;  in  criminal  cases,  sec.  285,  C.  Cr.  P. ; 
Levisee,  p,  1315;  sec.  7312,  Comp.  Laws,  et  seq. 

Consult  also,  sec.  6593,  Rev.  Codes,  N.  D.,  next  chapter. 

What  AflB.davits  Must  Show — Exception — Error.  Upon  application 
for  change  of  trial  judge,  under  this  section,  on  account  of  bias  and  preju- 
dice, the  party  making  the  application  must  establish  such  facts  and  circum- 
stances, by  affidavit  or  other  extrinsic  testimony,  as  clearly  shows  existence 
of  bias  and  prejudice  on  the  part  of  the  judge  against  the  defendant  as 
to  raise  a  strong  presumption  that  a  fair  and  impartial  trial  cannot  be  had 
before  such  judge.  It  must  be  of  sucb  a  showing,  and  strong  enough  to 
overthrow  the  presumptioTi  in  favor  of  the  integrity  of  th6  trial  judge,  be- 
fore a  change  will  be  made.  State  v.  Chapman  et  al,  1  S.  D.  414,  47  N.  nV. 
411;  Territory  v.  Egan,  3  Dak,  125,  13  N.  W.  568;  People  v,  McCauley,  1 
Cal,  383;  People  v.  Mahoney,  18  Cal,  181;  Posey  v.  State,  73  Ala.  491;  Table 
Mountain  Gold,  etc,  Min.  Co,  v.  Waller's  Defeat  Silver  Min.  Co.  4  Nev.  ^ 
218;  State  v.  Gordon,  3  Iowa,  410;  State  v,  Barrett,  8  Iowa,  539;  Findley  v. 
State.  5  Blackf.  576;  Spence  v.  State,  8  Blackf.  281;  Boswell  v.  Flockheart, 
8  Leigh,  364;  Malone  v.  R.  R.  Co.  35  Fed.  625;  Short  v.  Railway  Co.,  34  Fed. 
225.  The  decision  of  the  trial  court  on  the  question  of  indifference  of  a  jur- 
or, or  for  actual  bias,  is,  not  reviewable  in  this  court,  except  in  the  absence 
of  any  evidence  to  support  it,  in  which  case  it  is  an  error  of  law  to  which  an 
exception  lies.  State  v.  Chapman,  supra.  Where  an  application  is  made 
under  this  siection,  for  change  of  judge  on  account  of  bias  or  prejudice  of 
presiding  judge,  such  bias  or  prejudice  must  appear  '"to  the  satisfaction  of 
the  court;"  affidavits  stating  merely  the  fact  of  such  bias  or  prejudice  do 
not  necessarily  prove  the  same  ''to  the  satisfaction  of  the  court."  A  record 
showing  denial  of  the  application,  upon  such  affidavits,  exhibits  no  error. 
Following  State  v.  Chapman,  1  S.  D,  414,  47  N.  W,  411.  State  v,  Rodway,  1 
S.  D.  575,  47  N.  W,   1061, 

JURY  FOR  LAW  TERM— VENIRE  IN  CRIMINAL  CASES—POWERS 
OF  COURT— JURY  FEE— JUROR'S  PAY— BAILIFF  Sec.  21.  Un- 
less the  court  shall  otherwise  order,  the  jury  for  the  law  terms 
of  the  county  court  shall  be  drawn  and  summoned  in  the  man- 
ner as  is  now  or  may  hereafter  be  provided  by  law  for  the 
drawing  and  summoning  juries  for  the  terms  of  the  circuit 
court.  Wher#ajury  is  not  summoned  as  above  provided,  it 
shall  be  the  duty  of  said  court  on  the  first  day  of  each  term 
thereof  to  ascertain  whether  a  jury  shall  be  required;  if  a  jury 


272  COUNTY  COURTS — SOUTH  DAKOTA. 

shall  be  demanded  by  either  party  to  any  suit  pending,  or  by 
any  defendant,  or  the  state's  attorney,  in  any  criminal  action, 
the  court  shall  thereupon  set  such  case  or  cases  for  trial,  and 
direct  the  clerk  of  said  court  to  issue  a  venire  for  twelve  com- 
petent jurors,  and  deliver  the  same  to  the  sheriff,  who  shall 
summon  such  jurors  from  the  body  of  the  county  to  be  and  ap- 
pear before  said  court  at  the  term  set  for  the  return  of  said 
venire;  and  if  by  reason  of  non  attendance,  challenge  or  other- 
wise, said  jury  shall  not  be  full,  the  panel  shall  be  filled  by 
talesmen.  Said  court  shall  have  the  same  power  to  compel  the 
attendance  of  jurors  and  witnesses  as  has  the  circuit  court  and 
shall  be  governed  by  the  same  rules  in  empaneling  the  jury, 
acfc  the  court  may  retain  such  jury  for  all  the  jury  trials  of  said 
term;  Provided,  that  there  shall  be  taxed  as  a  part  of  the  costs 
of  each  civil  case  tried  by  a  jury  the  sum  of  ten  dollars  as  a 
■jury  fee,  which  shall  be  paid  into  the  county  treasury  and 
placed  to  the  credit  of  the  general  fund  of  the  county.  The 
per  diem  and  mileage  of  said  jurors  shall  be  the  same  as  they 
are  for  similar  services  in  the  circuit  court,  to  be  paid  out  of 
the  county  treasury  upon  the  certificate  of  the  county  clerk  or 
county  auditor;  Provided,  that  in  case  the  sheriff,  coroner  or 
bailiff  be  interested  in  any  jury  cases  pending,  or  in  case  any 
party  interested  or  any  attorney  may  object  to  any  sheriff,  cor- 
oner or  bailiff  selecting  the  jury,  if  the  court  shall  think  such 
objection  reasonable,  the  court  shall  appoint  an  impartial  bail- 
iff to  summon  such  jury. 

See,  for  "Formation  of  Trial  Jury"  in  civil  cases,  in  circuit  court  S. 
D.  chap.  2,  pp.  9  to  12.  ante;  in  criminal  cases,  sec.  7322,  et  seq,  Comp. 
Laws,  Post. 

TERMS— WHEN  SPECIAL  TERM  CALLED— ALWAYS  OPEN,  FOR 
WHAT  PURPOSES.  Sec.  22.  The  terms  of  the  county  court  for 
all  matters  relating  to  probate  jurisdiction  shall  be  held  as  pro- 
vided for  in  section  90,  of  chapter  21,  of  the  political  code;  and 
for  the  transaction  of  all  other  business  within  their  jurisdic- 
tion the  county  courts  shall  annually  hold  two  fbrms  of  court 
at  the  county  seat  of  their  respective  counties,  in  the  court 
house,  or  in  such  rooms  as  the  county  may  provide,  on  the  first 


COUNTY  COURTS.  273 


Tuesdays  in  January  and  July:  Provided,  that  if  in  any  county 
the  terms  of  the  circuit  court  are  fixed  for  such  months, 
or  a  term  of  the  circuit  court  is  being  held  in  any  county  at 
the  time  fixed  for  a  term  of  the  county  court,  or  if  for  any 
reason  a  term  of  the  county  court  cannot  be  held  at  the  time 
fixed  herein,  then  the  county  judge  shall  call  a  term  of  the 
county  court  within  three  months  after  the  adjournment  of  the 
term  of  the  circuit  court;  and  said  courts  shall  always  be  open 
within  said  counties  for  the  purpose  of  hearing  and  determin- 
ing all  matters  pertaining  to  probate  jurisdiction,  all  actions, 
special  proceedings,  motions  and  applications,  of  whatever  kind 
or  character,  and  whether  of  a  civil  or  criminal  nature,  arising 
under  the  laws  of  the  state,  and  of  which  the  county  courts 
have  jurisdiction,  original  or  appellate. 

For  sec.  90,  chap.  21,  Pol.  Code,  see  Levisee,  p.  372;  Comp.  Laws,  sec. 
686;  consult  sec.  6589,  Rev.  Codes,  N.  D.,  next  chapter. 

STENOGRAPHER— SAME  AS  IN  CIRCUIT  COURT.  Sec.  25.  The 
laws  relating  to  the  employment  and  pay  of  stenographers  in 
the  circuit  court  shall  apply  to  this  court  in  all  counties  where 
the  population  is  fifteen  thousand  or  more. 

As  to  stenographers,  generally,  see  Comp.  Laws,  Sees.  481  to  486;  Levi- 
see, pp  733-4,  and  p.  63,  ante. 


CHAPTER  XII. 

Chap.  8,  Probate  Code. 

practice  in  county  courts  with  increased  jurisdic- 
TION—NORTH DAKOTA. 

See  note  at  beginning  of  Chapter  11,  ante. 

PROCEDURE— GENERAL  PROVISIOt^S  AS  TO  DISTRICT  COURT 
APPLY— RULES.  §  6588  Rev.  Codes  N.  D.  The  general  provis- 
ions of  law  which  may  at  any  time  be  in  force  relating  to  the 
district  courts,  and  to  civil  and  criminal  proceedings  therein 
18— T  P 


274  PROBATE  CODE — NORTH  DAKOTA. 

shall  relate  also  to  the  county  courts  having  increased  jurisdic- 
tion and  the  rules  of  practice  of  district  courts  shall  be  in 
force  in  said  county  courts,  unless  inapplicable  and  except  as 
herein  otherwise  provided.     (Sec.  1,  chap.  43,  Laws  1895.) 

See,  as  to  formation  of  trial  jury  and  trials  in  district  court,  in  civil 
cases,  chap.  2  and  3,  pp.  9  to  32,  ante,  and  as  to  subsequent  proceedings,  see 
subsequent  chapters,  ante;  as  to  trial  juries  in  criminal  cases,  see  sees. 
8127  to  8140,  Rev.  Codes  N.  D.,  and  for  trials  in  auch  cases,  see  sees.  8175  to 
8221,  Rev.  Codes,  N.  D.;  and  subsequent  chapters  for  other  proceedings, 
Post.  Consult  also  sec.  13  of  preceding  chapter  as  to  proceedings  in  county 
court  of  S.  D.,  and  the  provisions  of  said  chapter  at  large,  and  decisions 
thereunder. 

TERMS— BUSINESS  TRANSACTED  AT  §6589  Rev.  Codes  N. 
D.  The  regular  term  of  the  county  court  shall  be  held  at  the 
county  seat,  commencing  at  9  o'clock  a.  m.  on  the  first  Tues- 
day of  each  calendar  month  for  the  trial  of  such  cisril  and 
criminal  actions  as  may  be  brought  before  such  court.  (Sec. 
2,  chap.  43,  laws  1895. ) 

Consult  next  section;  and  sec.  22  of  preceding  chapter,  as  to  terms  of 
county  court,  etc.,  in  S.  D. 

CALENDAR—ORDER  OF  CAUSES  ON— TRIAL  §  6590  Rev. 
Codes  N,  D.  The  county  judge  shall,  on  the  first  day  of  each 
term,  or  as  soon  thefreafter  as  may  be,  prepare  a  calendar  of 
the  causes  standing  for  trial  at  such  term,  placing  the  causes 
upon  such  calendar  in  the  order  in  which  the  same  are  num- 
bered on  the  docket  and  setting  the  causes  for  trial  upon  con- 
venient days  during  such  term;  provided,  that  no  cause  shall 
be  set  for  trial  upon  the  first  day  of  said  term  without  the  con- 
sent of  all  parties  thereto.     (Sec.  3,  chap.  43,  Laws  1895.) 

Consult  preceding  section  and  sec.  6611,  infra;  sec.  21,  preceding 
chapter. 

APPEAL— TO  DISRTICT  OR  SUPREME  COURT— PROCEDURE- 
UNDERTAKING.  §  6591  Rev.  Codes  N.  D.  In  all  actions  brought 
under  the  provisions  of  this  chapter  an  appeal  may  be  taken 
to  the  district  court  of  the  county  or  to  the  supreme  court,  and 
if  the  appeal  is  to  the  district  court  it  shall  be  taken  in  the 
same  manner  as  appeals  from  justice's  court  and  if  the  appeal 
is  to  the  supreme  court  it  shall  be  taken  in  the  same  manner 


COUNTY   COURTS.  275 


and  pursuant  to  the  same  rules  as  appeals  from  the  district 
court;  provided,  that  in  civil  actions  when  the  amount  in  con- 
troversy, exclusive  of  costs,  is  less  than  two  hundred  and  fifty- 
dollars  an  appeal  to  the  district  court  only  shall  lie;  and  pro- 
vided, further,  that  an  appeal  to  the  district  court  shall  not  be 
effectual  for  any  purpose  unless  an  undertaking  is  filed  with 
two  or  more  sureties  in  a  sum  equal  to  the  amount  in  contro- 
versy or  to  the  value  of  the  specific  property  in  controversy 
plus  one  hundred  dollars.     (Sec.  4,  chap.  43,  Laws  1895.) 

Consult  ^s  to  appeals  from  district  to  supreme  court,  chap.  9,  p.  189, 
et  seq.  supra;  sec.  12,  chap.  11,  ante. 

JURISDICTION  ON  APPEAL— PROCEDURE.  §  6592  Rev.  Codes 
N.  D.  Such  county  courts  shall  have  concurrent  jurisdiction 
with  the  district  courts  in  appeals  from  all  final  judgments  of 
justices  of  the  peace,  police,  city  or  township  justices,  and  the 
proceedings  on  such  appeals  shall  be  the  same  as  now  or  may 
hereafter  be  provided  for  appeals  from  judgments  of  justices 
of  the  peace  to  district  courts.     (Sec.  5,  chap.  43,  Laws  1895.) 

Consult  preceding  section;  and  sees.  6771  to  6780,  Rev.  Codes,  N.  D.; 
sees.  6129  to  6136,  Comp.  Laws,  Post,  as  to  appeals  from  justices;  sec.  12, 
preceding  chapter. 

CHANGE  OF  VENUE— CERTIFICATION  TO  DISTRICT  COURT- 
TRIAL  §  6593  Rev.  Codes  N.  D.  In  any  civil  or  criminal  cause  of 
which  this  court  has  jurisdiction,  whenever  at  any  time  before 
said  cause  is  called  for  trial  it  shall  appear  to  the  court  by  affi- 
davit, or  if  the  court  shall  so  order  upon  other  testimony,  that 
a  fair  and  impartial  trial  cannot  be  had  in  such  court  by  reason 
of  the  bias  or  prejudice  of  the  judge  or  otherwise,  the  court 
shall  direct  said  cause  and  all  papers  and  documents  connected 
therewith  to  be  certified  to  the  district  court  of  the  county 
wherein  said  county  court  is  held;  and  such  papers  shall  be  de- 
livered to  the  clerk  of  the  district  court  at  least  one  day  before 
the  first  day  of  the  next  term  thereof  and  shall  be  placed  upon 
the  trial  calendar  and  stand  for  trial  the  same  as  cases  orig- 
inally commenced  in  the  district  court.  (Sec.  6,  chap.  43, 
Laws  1895. ) 


276  PROBATE  CODE — NORTH  DAKOTA. 

Consult  sec.  20,  preceding  chapter;  and  as  to  change  of  venue  gener- 
ally, sec.  5243,  Rev.  Codes,  N.  D.,  et.  seq.;  sec.  94,  et,  seq.,  C.  C.  P.;  Lev- 
isee,  pp.  22-3. 

JURIES,  HOW  SUMMONED  AND  SELECTED— CHALLENGES.  § 
6594  Rev.  Codes  N.  D.  Juries  in  the  county  court  shall  be  se- 
lected by  the  county  judge  and  summoned  in  the  same  manner 
as  is  now  provided  by  law  for  selecting  juries  before  justices  of 
the  peace;  provided,  that  each  party  shall  be  entitled  to  the 
same  number  of  challenges  as  is  now  or  may  hereafter  be  al- 
lowed in  the  district  court  in  like  actions.  (Sec.  7,  chap.  43, 
Laws  1895. ) 

Consult,  for  mode  of  selection  of  juries  in  justice's  court,  sees.  6686  to 
6691,  Rev.  Codes  N.  D.;  and  for  challenges  in  district  court,  chap.  2,  p.  9, 
ante;  and  see  sec.  21,   preceding  chapter. 

NEW  TRIALS— AFFIRMANCE,  ETC.— STATEMENT.  §  6595  Rev. 
Codes  N.  D.  The  county  court  shall  have  authority  to  grant 
new  trials,  affirm,  modify  or  set  aside  judgments  in  actions 
tried  in  such  court  upon  a  statement  of  the  case  prepared  and 
settled  in  the  manner  provided  in  the  code  of  civil  procedure. 
(Sec.  8,  chap.  43,  Laws  1895.) 

For  statements  and  exceptions,  see  chap.  7,  ante.  pp.  63  to  77;  also,  va- 
rious heads  under  chap.  8,  on  New  Trials,  ante,  pp.  77,  et.  seq.;  sec.  9,  pre- 
ceding chapter,  and  decisions  thei^eundec. 

POWER  TO  ISSUE  SUMMONS,  PROCESS,  ETC.— WITNESSES,  § 
6596  Rev.  Codes  N.  D.  The  several  county  courts  shall  have 
power  to  issue  all  summons,  citations,  subpoinas,  executions, 
warrants  and  process  authorized  by  law  which  may  be  neces- 
sary to  carry  into  effect  any  order,  judgment  or  decree  thereof, 
to  compel  the  attendance  of  witnesses  or  to  carry  into  execu- 
tion the  powers  with  which  they  are  vested,  (Sec.  9,  chap. 
48,  laws  1895. ) 

Consult  sec.  8,  preceding  chapter. 

ABSENCE  OF  JUDGE— WAIT  ONE  HOUR— ADJOURNMENT.  § 
6598  Rev.  Codes  N.  D.  When  for -any  cause  the  county  judge 
fails  to  attend  at  the  commencement  of  any  regular  term  or  at 
the  time  to  which  any  cause  is  assigned  for  trial  or  at  the  time 
to  which  any  cause  may  be  continued,  the  parties  shall  not  be 
obliged  to  wait  more  than  one  hour,  and  if  he  does  not  attend 
within  the  hour  and  no  other  disposition  of  the  case  is  made  by 


COUNTY  COURTS.  277 


such  judge,  the  parties  in  attendance  shall  be  required  to  at- 
tend at  9  o'clock  a.  m.  of  the  following  day  and  if  such  judge 
shall  not  attend  at  that  time  the  cause  shall  stand  continued 
until  the  first  day  of  the  next  regular  term,  (Sec.  11,  ch.  43, 
1895.) 

Consult  sec.  6593,  supra,  and  sec.  21,  preceding  chapter. 

JURISDICTION  IN  CRIMINAL  CASES— SAME  AS  DISTRICT  COURT 
BELOW— FELONY.  §  6601  Rev.  Codes  N.  D.  Concurrent  juris- 
diction, power  and  authority  with  the  district  court  is  hereby 
conferred  and  imposed  upon  county  courts  having  increased 
jurisdiction  of  all  criminal  offenses  of  which  the  district  court 
of  said  county  has  jurisdiction,  below  the  grade  of  felony,  and 
of  any  person  accused  thereof,  and  to  hear,  try,  determine, 
pronounce  judgment  and  sentence  and  take  and  have  all  neces- 
sary proceedings  concerning  or  relating  thereto  as  provided  by 
law.-  The  necessary  jurisdiction,  power  and  authority  is  here- 
by conferred  and  imposed  upon  the  county  court.  (Sec.  14, 
ch.  43,  1895.) 

See,  as  to  jurisdiction  of  district  court  in  criminal  cases,  sees.  7753,. 
7756,  Rev.  Codes,  N.  D. 

BAIL— INFORMATION  IN  COUNTY  COURT— CERTIFICATION  TO 
DISTRICT  COURT  WHEN,  AND  VICE  VERSA.  §  6602  Rev.  Codes  N.  D. 
In  any  criminal  action  or  proceeding  for  any  criminal  offense 
of  which  the  county  court  has  jurisdiction,  any  justice  of  the 
peace  or  other  examining  magistrate  having  jurisdiction  must 
admit  to  bail,  bind  over  or  commit  for  trial  the  accused  to  the 
county  court  of  such  county  and  the  information  shall  be  filed 
in  such  county  court.  If  any  person  accused  of  a  criminal  of- 
fense is  s6  bailed,  bound  over  or  committed  for  trial  to  the 
county  court  for  a  crime  for  which  such  court  has  not  jurisdic- 
tion, such  proceeding  shall  not  abate  and  such  county  court 
shall  not  lose  jurisdiction  of  such  person  and  proceeding,  but 
shall  certify  the  same  to  the  district  court  of  such  county,  and 
such  proceeding  shall  thereupon  be  tried  in  the  district  court 
with  the  same  force  and  effect  as  if  such  action  or  proceedings 
had  been  originally  commenced  therein.  If  any  examining 
magistrate  shall  at  any  time  bind  over  a  defendant  to   the  dis- 


278  PROBATE   CODE — NORTH  DAKOTA. 

trict  court  for  an  offense  of  which  the  county  court  has  jurisdic- 
tion or  if  it  shall  appear  by  evidence  or  otherwise  at  any  time 
to  the  judge  of  the  district  court  that  the  offense  with  which 
the  defendant  is  or  should  be  charged  is  triable  in  the  county 
court,  the  judge  of  the  district  court  may  certify  such  cause 
and  all  proceedings  relative  to  any  person  accused  of  such  of- 
fense to  the  county  court  of  such  county  for  trial,  determina- 
tion and  adjudication,  and  thereupon  the  same  and  all  the  pa- 
pers and  files  therein  shall  be  transferred  by  the  clerk  of  the 
■district  court  to  the  county  court  without  any  further  order  or 
•certificate  and  such  cause  shall  thereupon  be  tried  in  the  county 
court  with  the  same  force  and  effect  as  if  such  cause  had  orig- 
inally been  commenced  therein.  (Sec.  15,  chap.  43,  Laws  of 
1895. ) 

Consult  sec.  6601,  supra;  also  sec.  14,  preceding'  chapter,  as  to  prose- 
cution by  information. 

JURY  TRIAL,  WHEN— DEMAND  FOR— CRIMINAL  ACTIONS— 
WAIVER.  §  6603  Rev.  Codes  N.  D.  In  civil  actions  when  the 
value  in  controversy  or  sum  demanded  exceeds  fifty  dollars, 
either  party  may  demand  a  jury  trial,  but  such  demand  shall  be 
made  on  or  before  the  first  day  of  the  term  upon  the  calendar 
of  which  said  cause  appears.  In  criminal  actions  when  the  de- 
fendant is  arraigned  he  shall  be  informed  by  the  court  of  his 
right  to  trial  by  jury  and  if  he  waives  his  right  to  a  jury  trial, 
an  entry  to  that  effect  shall  be  made  in  the  court  minutes.  (Sec. 
16,  ch.  43,  1895. ) 

Consult  sec.  6594,  Rev.  Codes,  N.  D.  supra;  sec.  5420,  6449,  Rev.  Codes, 
N.  D.  ante^  pp.  3,  45. 

PLEA  OF  GUILTY— TRIAL  BY  COURT,  WHEN.  §  6605  Rev. 
Codes  N.  D.  The  court  may  receive  the  plea  of  guilty  and 
pass  judgment  in  term  time  or  vacation;  if  the  accused  waives 
a  jury  he  may  be  tried  by  the  court  without  a  jury  in  term  time 
upon  notice  being  first  given  to  the  state's  attorney.  (Sec.  18, 
chap.  43,  1895. ) 

Consult  sees.  6601,  6603,  supra;  and  sec.  16,   preceding  chapter. 

PRELIMINARY  EXAMINATION  UNNECESSARY  §  6606  Rev. 
CJodes  N.  D.     No  preliminary  examination  shall  be  necessary 


COUNTY   COURTS.  279 


before  trial  in  criminal  actions  in  the  county  court.  (Sec.  19^ 
chap.  43,   1895.) 

Consult  sec.  14,  preceding  chapter;  and  chapter  64,  laws  1895,  S.  D.  p,. 
69,  and  particularly  sec.  8  of  that  act,  as  to  preliminary  examinations. 

Preliminary  Examination  Before  Information— "Waiver— Pleadings 
Sec.  8,  chap.  71,  laws  1890,  providing  that,  with  certain  specified  excep- 
tions, "no  information  shall  be  filed  against  any  person  for  any  crime  or  of- 
fense until  such  person  shall  have  had  a  preliminary  examination  therefor, 
as  provided  by  law,  before  a  committing  magistrate  or  other  ofificer  having 
authority  to  make  preliminary  examinations,  unless  such  person  shall  waive 
his  right  to  such  examination,"  etc.,  construed.  Held,  where  a  criminal 
complaint  filed  against  the  accused  with  an  examining  magistrate,  after  al- 
leging time  and  place,  designates  the  offense  in  general  language,  giving 
its  name,  and  in  addition  thereto  sets  out  such  of  the  facts  and  circumstances 
constituting  the  offense  as  will  fairly  apprise  a  person  of  average  intelli- 
gence of  the  nature  of  the  accusation,  is  sufficient,  within  the  meaning  of 
the  statute,  to  authorize  the  state's  attorney  to  file  an  information  against 
the  accused  for  the  same  offense,  if  he  has  had  or  waived  an  examination  on 
such  complaint.  State  ex  rel  Peterson  v.  Barnes,  sheriff,  3  N.  D.  131,  54 
N.  W.  541:  State  v.  Tennison  (Kas.)  18  Pac.  948;  State  v.  Reedy,  (Kas.)  24 
Pac.  66;  State  v.  Bailey  (Kas.)  3  Pac.  769.  Same— Jurisdiction  to  Decide 
Question.  Where  a  defendant  pleaded  in  abatement  to  an  information  filed 
against  him  in  the  district  court  that  he  had  neither  had  nor  waived  a  pre- 
liminary examination  for  the  offense  charged  in  the  information,  the  plea 
being  overruled,  held,  such  ruling  was  made  by  a  court  having  jurisdiction 
of  the  person  and  subject-matter,  and  therefor  the  ruling  cannot  be  re- 
viewed by  habeas  corpus.  State  ex  rel  Peterson  v.  Barnes,  sheriff,  3  N.  D. 
131,  54  N.  W.  541;  Petition  of  Semler,  41  Wis.  518;  Eisner  v.  Shingley 
(Iowa)  45  N.  W.  393;  In  re  Elli-s  (Mich.)  44  N.  W.  616;  Ex  parte  Ah  Sam 
(Cal.)  24  Pac.  276;  Ex  parte  Seibold,  100  U.  S.  375;  Wood  v.  Brush,  11  Sup.. 
Ct.  738;  Ex  parte  Max,  44  Cal.  579. 

COUNSEL  ASSIGNED  IN  CRIMINAL  CASES,  WHEN— COMPENSA- 
TION. §  6607  Rev.  Codes  N.  D.  In  all  criminal  cases  triable 
in  the  county  court  when  it  is  satisfactorily  shown  to  the  court 
that  the  defendant  has  no  means  and  is  unable  to  employ  coun- 
sel, the  court  shall  in  such  cases  assign  counsel  for  the  defense 
and  allow  and  direct  to  be  paid  by  the  county  in  which  said 
court  is  held  a  reasonable  and  just  compensation  to  the  attorney 
or  attorneys  assigned  for  such  services  as  they  may  render; 
provided,  however,  that  such  compensation  shall  not  exceed 
twenty-five  dollars  in  any  one  case.  (Sec.  20,  chap.  48,  laws 
1895.) 


280  OF  APPEAL  AND  APPEAL  BONDS. 

Consult  sec.  7749,  Rev.  Codes,  N.  D. 

CAUSE  STANDS  FOR  TRIAL  WHEN— ANSWER.  §  6611  Rev. 
Codes  N.  D.  When  the  time  to  answer  does  not  expire  at  least 
ten  days  before  the  first  day  of  the  next  term  of  court,  the  cause 
shall  stand  for  trial  at  the  next  succeeding  term  thereafter 
without  further  notice  to  defendant.  (Sec.  24,  chapter  43, 
1895. ) 

Consult  sees.  6590,  6598,  6599,  supra. 

STENOGRAPHER— APPOINTMENT  OF— DUTIES  AND  PAY— WHAT 
COUNTIES.  §  6617  Rev.  Codes  N.D.  Thejudgeof  any  county  court 
having  civil  or  criminal  jurisdiction  is  authorized  in  his  discre- 
tion to  appoint  a  court  stenographer  of  such  court.  Such  ste- 
nographer shall  qualify  in  the  same  manner  and  his  duties  and 
compensation  shall  be  the  same  as  the  court  stenographer  of  a 
district  court;  such  compensation  shall  be  paid  in  the  same 
manner  as  that  of  the  court  stenographer  of  the  district  court; 
provided,  that  such  court  stenographer  shall  not  be  appointed 
in  any  county  having  less  than  eight  thousand  inhabitants,  un- 
less the  board  of  county  commissioners  shall  first  authorize 
such  appointment.     (Sec.  30,  chap.  43,  1895.) 

Consult  sec.  414,  Rev.  Codes,  N.  D.  et  seq;  and  sec.  25,  preceding' 
chapter. 


CHAPTER  XIII. 


Art.  2,  Chap.  12,  Probate  Code — South  Dakota. 
of  appeal  and  appeal  bonds. 

[Author's  Note.  There  being  no  general  provisions  in  the  Probate 
Code,  S.  D.,  relating  to  trials  of  issues,  except  sec.  5957,  Comp.  Laws  (being 
sec.  307,  Prob.  Code,  Levisee,  p.  266),  no  chapter  upon  that  subject  appears 
in  this  book.  See  the  section  above  referred  to,  set  forth  in  full  under  sec. 
13  of  the  County  Court  Act  of  S.  D.,  ante,  chap.  II.] 

APPEAL  TO  CIRCUIT  COURT— FROM  WHAT  JUDGMENTS,  DE- 
CREES AND  ORDERS.     §  5962  Comp.  Laws.     An   appeal  may  be 


OF  APPEAL  AND  APPEAL  BONDS.  281 

taken  to  the  circuit  court  from  a  judgment,  decree  or  order  of 
the  probate  court: 

1.  Granting,  or  refusing,  or  revoking  letters  testamen- 
tary or  of  administration,  or  of  guardianship. 

2.  Admitting,  or  refusing  to  admit,  a  will  to  probate. 

3.  Against  or  in  favor  of  the  validity  of  a  will  or  revoking 
the  probate  thereof. 

4.  Against  or  in  favor  of  setting  apart  property,  or  mak- 
ing an  allowance  for  a  widow  or  child. 

5.  Against  or  in  favor  of  directing  the  petition,  sale  or 
conveyance  of  real  property. 

6.  Settling  an  account  of  an  executor,  or  administrator 
or  guardian. 

7.  Refusing,  allowing  or  directing  the  distribution  or 
partition  of  an  estate,  or  any  part  thereof,  or  the  payment  of  a 
debt,  claim,  legacy  or  distributive  share;  or, 

8.  Prom  any  other  judgment,  decree  or  order  of  the  pro- 
bate court,  or  of  the  judge  thereof  affecting  a  substantial  right. 
(Sec.  312Prob.  C.) 

Levisee,  p.  268. 

Consult  next  two  sections;  sec.  6254,  Rev.  Codes,  N.  D.,  chap.  15,  Post. 

WHO  MAY  APPEAL  Sec.  5963,  Comp.  Laws.  Any  party 
aggrieved  may  appeal  as  aforesaid,  except  where  the  decree  or 
order  of  which  he  complains,  was  rendered  or  made  upon 
his  default.     (Sec.  313,  Prob.  C.) 

Levisee,  p.  268. 

Consult  preceding  section;  sees.  6254,  6255,  Rev.  Codes,  N.  D.,  chap. 
15,  Post. 

SAME— ANY  PERSON  INTERESTED— PARTY— SHOWING.  §  5964 
Comp.  Laws.  A  person  interested  in  the  estate  or  fund  affect- 
ed by  the  decree  or  order,  who  was  not  a  party  to  the  special 
proceeding  in  which  it  was  made,  but  who  was  entitled  by  law 
to  be  heard  therein,  upon  his  application,  or  who  has  acquired, 
since  the  decree  or  order  was  made,  a  right  or  interest  which 
would  have  entitled  him  to  be  heard,  if  it  had  been  previously 
acquired,  may  also  appeal  as  prescribed  in  this  article.  The 
18i— T  P 


282  PROBATE  CODE— SOUTH  DAKOTA. 

facts  which  entitle  such  a  person  to  appeal,  must  be  shown  by 
an  affidavit  which  must  be  filed  with  the  notice  of  appeal. 
(Sec.  314,  Prob.  C.) 

Levi  see,  p.  268. 

Consult  two  preceding  sections;  sec.  6255,  Rev.  Codes,  N.  D.,  chap. 
15,  Post. 

TIME  IN  WHICH  APPEAL  TAKEN,  §  5965  Comp.  Laws.  An 
appeal  by  a  party,  or  by  a  person  interested  who  was  present 
at  the  hearing,  must  be  taken  within  10  days,  and  an  appeal 
by  a  person  interested,  who  was  not  a  party  and  not  present  at 
the  hearing,  within  thirty  days  from  the  date  of  the  judgment, 
decree,  or  order  appealed  from.     (Sec.  315,  Prob.  C. ) 

Levisee,  p.  268. 

APPEAL,  HOW  TAKEN— NOTICE  OF— NO  NOTICE  OF  TRIAL 
ABOVE.     §  5966  Comp.  Laws.     The  appeal  must  be  made: 

1.  By  filing  a  written  notice  thereof  with  the  judge  of  the 
probate  court,  stating  the  judgment,  decree,  or  order  appealed 
from,  or  some  specific  part  thereof,  and  whether  the  appeal  is 
on  a  question  of  law,  or  of  fact,  or  of  both,  and,  if  of  law  alone, 
the  particular  grounds  upon  which  the  party  intends  to  rely  on 
his  appeal;  and, 

2.  By  executing  and  filing  within  the  time  limited  in  the 
preceding  section,  such  bond  as  is  required  in  the  following 
sections.  It  shall  not  be  necessary  to  notify  or  summon  the 
appellee  or  respondent  to  appear  in  the  circuit  court,  but  such 
respondent  shall  be  taken  and  held  to  have  notice  of  such  ap- 
peal in  the  same  manner  as  he  had  notice  of  the  pendency  of 
the  proceedings  in  the  probate  court.     (Sec.  316,  Prob.  C. ) 

Levisee,  p.  268-9. 

Consult  preceding  section;  sees.  6256,  6270,  Rev.  Codes,  N.  D.,  chap. 
15,  Post. 

APPEAL  BOND,  REQUISITES  OF  §  5967  Comp.  Laws.  The 
appeal  bond  shall  be  in  such  sum  as  the  judge  of  the  probate 
court  shall  require  and  deem  sufficient,  with  at  least  two  suffi- 
cient sureties  to  be  approved  by  the  judge,  conditioned  that  the 
appellant  will  prosecute  his  appeal  with  due  diligence  to  a  de- 
termination, and  will  abide,  fulfill  and  perform  whatever  judg- 


OF  APPEAL  AND  APPEAL  BONDS.  283 

ment,  decree  or  order  may  be  rendered  against  him  in  that  pro- 
ceeding by  the  circuit  court,  and  that  he  will  pay  all  damages 
which  the  opposite  party  may  sustain  by  reason  of  such  ap- 
peal, together  with  all  costs  that  may  be  adjudged  against  him. 
(Sec.  317,  Prob.  C.) 

Levisee,  p.  269. 

Consult  next  two  sections,  and  sec.  5971,  infra;  sec.  6263,  Rev.  Codes, 
N.  D.,  chap.  15,  Post. 

STAY  BOND,  REQUISITES  OF.  §  5968  Comp.  Laws.  If  the 
judgment,  decree  or  order  appealed  from  be  for,  or  direct,  the 
payment  of  money,  or  the  delivery  of  any  property,  or  grant 
leave  to  issue  an  execution,  the  appeal  shall  not  stay  the  exe- 
cution thereof,  unless  the  appeal  bond  be  furthermore  condi- 
tioned to  the  effect  that  if  the  judgment,  decree  or  order,  or 
any  part  thereof  be  aftirmed,  or  the  appeal  be  dismissed,  the 
appellant  shall  pay  the  sum  so  directed  to  be  paid  or  levied,  or, 
as  the  case  may  require,  shall  deliver  the  property  so  directed 
to  be  delivered,  or  the  part  thereof  as  to  which  the  judgment, 
decree  or  order  shall  be  affirmed.     (Sec.  318,  Prob.  C. ) 

Levisee,  p.  269. 

Consult  preceding,  and  next  section;  sec.  6265,  Rev.  Codes,  N.  D., 
chap.  15,  Post. 

SAME— COMMITMENT  OF  PERSON— VIOLATION  OF  BOND— PROS- 
ECUTION OF.  §  5969  Comp.  Laws.  An  appeal  from  any  judg- 
ment, decree  or  order  directing  the  commitment  of  any  person, 
does  not  stay  the  execution  thereof,  unless  the  appeal  bond  be 
also  to  the  effect  that  if  the  judgment,  decree  or  order  ap- 
pealed from  be  affirmed,  or  the  appeal  be  dismissed,  the  appel- 
lant shall,  within  twenty  days  after  such  affirmance  or  dismis- 
sal, surrender  himself  in  obedience  to  the  judgment,  decree  or 
order,  to  the  custody  of  the  sheriff  to  whom  he  was  committed. 
If  the  condition  of  such  bond  be  violated,  it  may  be  prosecuted 
in  the  same  manner  and  with  the  same  effect  as  an  administra- 
tor's official  bond;  and  the  proceeds  of  the  action  must  be  paid 
or  distributed,  as  directed  by  the  probate  court,  to  or  among 
the  persons  aggrieved,  to  the  extent  of  the  pecuniary  injuries 
sustained  by  them,  and  the  balance,  if  any,  must  be  paid  into 
the  county  treasury.     (Sec.  319,  Prob.  Code.) 


284  PROBATE  CODE— SOUTH  DAKOTA. 

Levisee,  p.  369. 

Consult  preceding  section;  sec.  6257,  Rev.  Codes,  N.  D.,  chap. 
15,  Post. 

JUSTIFICATION  BY  SURETIES— INCREASE  OF  BOND— NEW  ONE. 
§  5970,  Comp.  Laws.  The  sureties  in  every  appeal  bond  must 
justify  in  the  manner  required  in  article  6  of  chapter  3,  of  this 
code;  and  the  respondent  may  apply  to  the  appellate  court  or 
the  judge  thereof,  upon  notice,  for  an  order  requiring  the  ap- 
pellant to  increase  the  sum  fixed  by  the  judge  of  the  probate 
court,  or  to  give  additional  security;  and  if  the  applicant  make 
default  in  giving  a  new  bond,  pursuant  to  an  order  to  increase 
the  same,  or  to  give  additional  security,  the  appeal  may  be  dis- 
missed.    (Sec.  320,  Prob.  C.) 

Levisee,  p.  269-70. 

See,  as  to  justification,  sec.  75,  et.  seq.,  Prob.  Code,  Levisee,  pp.  214, 
et  seq.,  sees.  5724,  et  seq.,  Comp.  Laws. 

Consult  sec.  6264,  Rev.  Codes,  N.  D,,  chap.  15,  Post. 

FORM  OF  BOND— ACTION  UPON,  ORDERED— DAMAGES  DIS- 
TRIBUTED. §  5971  Comp.  Laws.  Every  appeal  bond  must  be  to 
the  state  of  South  Dakota;  must  contain  the  name  and  resi- 
dence of  each  of  the  sureties  thereto,  and  must  be  filed  in  the 
probate  court.  The  judge  of  the  probate  court  may,  at  any 
time,  in  his  discretion,  make  an  order  authorizing  any  person 
aggrieved  to  bring  an  action  on  the  bond,  in  his  own  name  or 
in  the  name  of  the  state.  When  it  is  brought  in  the  name  of 
the  state,  the  damages  collected  must  be  paid  over  to  the  pro- 
bate court,  and  therein  distributed  as  justice  may  require. 
(Sec.  321,  Prob.  C.) 

Levisee,  p.  270. 

Consult  sec.  5967,  supra. 

APPEAL  DOES  NOT  STAY  PROBATE  OF  WILL— LETTERS,  ETC. 
SELLING  REALTY,  ETC.  §  5972  Comp.  Laws.  An  appeal  from  a 
decree  or  order  admitting  a  will  to  probate,  or  granting  letters 
testamentary,  or  letters  of  administration,  does  not  stay  the 
issuing  of  letters  where,  in  the  opinion  of  the  probate  judge, 
manifested  by  an  entry  upon  the  minutes  of  the  court,  the  pres- 
ervation of  the  estate  requires  that  such  letters  should  issue. 


OP  APt»EAL  AND  APPEAL  BONDS.  285 

But  the  letters  so  issued  do  not  confer  power  to  sell  real  prop- 
erty by  virtue  of  any  provision  in  the  will,  or  to  pay  or  satisfy 
legacies  or  to  distribute  the  property  of  the  decedent  among 
the  next  of  kin,  until  the  final  determination  of  the  appeal. 
(Sec.  322,  Prob.  C.) 

Levisee,  p.  270. 

Consult  sec.  5968,  supi-a;  sec.  6267,  Rev.  Codes,  N.  D.  chapter  15, 
Post. 

REVOKING  PROBATE  OF  WILL  ETC.,  NOT  STAYED  BY  AP- 
PEAL. §  5973  Comp.  Laws.  An  appeal  from  a  decree  or  order 
revoking  probate  of  a  will,  letters  testamentary,  letters  of  ad- 
ministration or  letter?  of  guardianship,  or  from  a  decree  or  or- 
der suspending  or  removing  an  executor,  administrator  or 
guardian,  ot  removing  or  suspending  a  testamentary  trustee 
or  a  person  appointed  by  the  probate  court,  or  appointing  an 
appraiser  of  personal  property,  does  not  stay  the  execution  of 
the  decree  or  order  appealed  from.     (Sec.  323,  Prob.  C. ) 

Levisee,  p.  270. 

Consult  preceding  section;  sec.  6268,  Rev.  Codes,  N.  D.  chapter  15, 
Post. 

TRANSCRIPT  ON  APPEAL— CONTENTS  OF— HEARING  ON  APPEAL 
—DEFAULT— DISMISSAL.  §  5974  Comp.  Laws.  The  judge  of  the 
probate  court  must,  within  ten  days  from  the  filing  of  the  no- 
tice of  appeal  and  the  giving  of  the  required  bond,  cause  a  cer- 
tified copy  thereof  and  of  the  judgment,  decree  or  order,  or 
specific  part  thereof  appealed  from,  and  the  minutes,  records, 
papers  and  proceedings  in  the  case,  to  be  transmitted  to  the 
clerk  of  the  circuit  court  of  the  county  or  judicial  subdivision, 
to  be  filed  in  his  office;  and  the  appeal  may  be  heard  acd  de- 
termined at  any  day  thereafter  by  said  court,  at  any  general, 
special  or  adjourned  term;  and  if  the  appellant  make  no  ap- 
pearance when  the  case  is  called  for  tria',  or  otherwise  fail  to 
prosecute  his  appeal,  the  respondent  may,  on  motion,  have  the 
appeal  dismissed,  or  may  open  the  record  and  moveior  an  af- 
firmance.    (Sec.   324,  Prob.  C.) 

Levisee,  p.  270, 

Consult  sec.  6977,  5978,  infra;  sec.  6269,  Rev.  Codes,  N.  D.  chap.  15, 
Post. 


286  PROBATE  CODE— SOUTH  DAKOTA. 

WHO  PLAINTIFF  ABOVE— POWER  OF  APPELLATE  COURT— NEW 
HEARING-EVIDENCE.  §  5975  Gomp.  Laws.  The  plaintiff  in  the 
probate  court  shall  be  the  plaintiff  in  the  circuit  court,  and 
when  the  appeal  is  on  questions  of  law  alone  the  appellant 
court  may  reverse,  affirm  or  modify  the  judgment,  decree  or 
order,  or  the  part  thereof  appealed  from,  and  every  interme- 
diate order  which  it  is  authorized  by  law  to  review,  in  any  re- 
spect mentioned  in  the  notice  of  appeal,  and  as  to  any  or  all  of 
the  parties,  and  it  may  order  a  new  hearing!  Upon  such  ap- 
peal, so  much  of  the  evidence  as  may  be  necessary  to  explain 
the  grounds,  and  no  more,  may  be  certified  into  the  appellate 
court.     (Sec.  325,  Prob.  C.) 

Levisee,  p.  271. 

Consult  as  to  parties,  sec.  5214,  Comp.  Laws,  p.  194,  *a«<e.  Consult 
also,  next  section;  sec.  6274,  Rev.  Codes,  N.  D.  chap.  15,  Post. 

TRIAL  DE  NOVO  ABOVE,  WHEN— PROCEDURE.  §  5976  Comp. 
Laws.  When  the  appeal  is  on  questions  of  fact,  or  on  ques- 
tions of  both  law  and  fact,  the  trial  iu  the  circuit  court  must 
be  de  novo,  and  shall  be  conducted  in  the  same  manner  as  if 
the  case  and  proceedings  had  lawfully  originated  in  that  court; 
and  such  appellate  court  has  the  same  power  to  decide  the 
questions  of  fact  which  the  probate  court  or  judge  had,  and  it 
may,  in  its  discretion,  as  in  suits  in  chancery,  and  with  like  ef- 
fect, make  an  order  for  the  trial  by  a  jury  of  any  or  all  the  ma- 
terial questions  of  fact  arising  upon  the  issues  between  the  par- 
ties, and  such  an  order  must  state  distinctly  and  plainly  the 
questiuns  of  fact  to  be  tried.     ( Sec.  326,  Prob.  C. ) 

Levisee,  p.  271. 

Consult  preceding  section;  sec.  6275,  Rev.  Codes,  N.  D.  chapter  15, 
Post. 

When  Circtiit  Court  Should  Retry  Case.  Upon  appeal,  on  questions 
of  both  law  and  fact,  to  circuit  couit  from  action  of  probate  court  in  appoint- 
ment of  a  guardian,  the  circuit  court  should  retry  the  case  and  pronounce 

judgment.     Engle  v.  Yorks, S.  D ,  64  N.  W.  132.     In  such  case  the 

circuit  court  is  not  confined  to  simply  affirming,  reversing,  or  modifying 
the  judgment  below,  as  where  the  appeal  is  upon  "questions  of  law  ■alone." 
Id.;  Goss  V.  Stone,  63  Mich.  319;  29  N.W.  735;  In  re  Leonard's  estate  (Mich.), 
54  N.  W.  1082;  Broadwater  v.  Richards  (Mont.),  2  Pac.  544.  Judgment 
Above — When  Deemed  Based  on  Findings.      When,  upon  such   trial  in 


OF  APPEAL  AND  APPEAL  BONDS.  287 

circuit  court,  questions  of  fact  are  submitted  to  a  jury,  whose  answers, 
although  only  advisory,  are  i-eferred  to  in  the  judgment  as  having  been 
"duly  considered,"  and  no  other  or  different  findings  are  found  or  claimed 
to  have  been  made,  or  that  findings  were  waived,  such  judgment  will  be  re- 
garded as  based  on  such  findings.  Id.  Haynes,  New  Tr.  &  App.,  sec.  234. 
Question  for  Review.  In  such  case  the  question  for  review  in  this  court, 
on  appeal  from  judgment  of  circuit  court  in  "affirming"  the  judgment  of 
probate  court  (except  that  it  appointed  another  guardian)  is,  could  the  judg- 
ment of  the  circuit  court  properly  follow  such  findings?  Engle  v.  Yorks, 
supra.  Held,  that  the  facts  so  found  did  not  justify  or  allow  the  judgment 
rendered  by  circuit  court.     Id. 

NEGLECT  TO  SEND  TRANSCRIPT— ORDER  REQUIRING -CON- 
TEMPT. §  5977  Comp.  Laws.  If  the  judge  of  the  probate  court  ne- 
glect or  refuse  to  make  or  transmit  such  certified  copies  as  are 
hereinbefore  required  to  be  transmitted  to  the  clerk  fo  the  circuit 
court  in  cases  of  appeal,  he  may  be  compelled  by  the  circuit 
court  by  an  order  entered,  upon  motion,  to  do  so;  and  he  may 
be  fined,  as  for  contempt,  for  any  such  neglect  or  refusal.  A 
certified  copy  of  such  order  may  be  served  upon  the  probate 
judge  by  the  party  or  his  attorney.     (ISec.  327,  Prob.  C. ) 

Levisee,  p.  271. 

Consult  sec.  5974,  supra'^  sec.  6269,  Rev.  Codes  N.  D.,  chap.  15,  Post. 

DISMISSAL  OF  APPEAL  IS  AFFIRMANCE—AMENDMENT  §  5978 
Comp.  Laws.  The  dismissal  of  an  appeal  by  the  circuit 
court  is  in  effect  an  affirmance  of  the  judgment,  decree  or  order 
appealed  from;  and  when  an  appellant  shall  have  given,  in 
good  faith,  notice  of  appeal,  but  omits,  through  mistake,  to  do 
any  other  act  necessary  to  perfect  the  appeal  or  to  stay  pro- 
ceedings, the  appellate  court  may  permit  an  amendment,  on 
such  terms  as  may  be  just.     (Sec.  328,  Prob.  C. ) 

Levisee,  p.  271. 

Consult  sec.  5974,  supra;  sec.  6273  Rev.  Codes,  N.  D.,  chap.  15,  Post. 

COSTS  OF  APPEAL,  COME  OUT  OF  ESTATE,  OR  DEFEATED 
PARTY.  §  5979  Comp.  Laws.  Such  appellate  court  may  award 
to  the  successful  party  the  costs  of  the  appeal;  or  it  may  direct 
that  such  costs  abide  the  event  of  a  new  hearing,  or  of  the  sub- 
sequent proceedings  in  the  probate  court.  In  either  case  the 
costs  may  be  made  payable  out  of  the  estate  or  fund,  or  per- 


288  PROBATE  CODE — SOUTH  DAKOTA. 

sonally  by  the  unsuccessful  party,  as  directed  by  the  appellate 
court;  or,  if  no  such  direction  be  given,  as  directed  by  the  pro- 
bate court.     (Sec.  329,  Prob.  C.) 

Levisee,  p.  271-2. 

Consult  see.  6278,  Rev.  Codes,  N.  D.,  chap.  15,  Post. 

JUDGMENT  ON  APPEAL  ENFORCED  BELOW— REMITTITUR.  § 
5980  Comp.  Laws.  When  a  judgment,  decree  or  order,  from 
which  an  appeal  has  been  taken,  is  wholly  or  partly  aflBrmed, 
or  is  modified  by  the  judgment  rendered  by  the  circuit  court 
upon  such  appeal,  it  must  be  enforced,  to  the  extent  author- 
ized by  the  latter  judgment,  by  the  probate  court,  in  like  man- 
mer  as  if  no  appeal  therefrom  had  been  taken;  and  the  circuit 
court  must  direct  the  proceedings  to  be  remitted  for  that  pur- 
pose to  the  probate  court,  or  to  the  judge  thereof.  (!Sec.  330, 
Prob.  C. ) 

Levisee,  p.  272. 

Consult  sees.  6975,  5976,  5977,  supra;  sec.  6279,  Rev.  Codes,  N.  D., 
chap.  15,  Post. 

OFFICIAL  BONDSMEN  HELD,  ON  APPEAL  BY  EXECUTOR,  ETC. 
§  5981  Comp.  Laws.  When  an  executor  or  administrator  who 
has  given  an  oflBcial  bond  appeals  from  a  judgment,  decree  or 
order  of  the  probate  court  or  judge,  made  in  the  proceedings 
had  upon  the  estate  of  which  he  is  administrator  or  executor, 
his  said  bond  stands  in  the  place  of  an  appeal  bond,  and  the 
sureties  therein  are  liable  as  on  such  appeal  bond.  (Sec.  331, 
Prob.  C. ) 

Levisee,  p.  272. 

Consult  sec.  5967,  supra;   sec.   6258,  Rev.  Codes,  N.  D.,  chap.  15,  Post. 

LAWFUL  ACTS  BELOW,  VALID,  NOTWITHSTANDING  REVERSAL. 
§  5982  Comp.  Laws.  When  the  order  or  decree  appointing  an 
executor,  or  administrator,  or  guardian,  is  reversed  on  appeal 
for  error,  and  not  for  want  of  jurisdiction  of  the  court,  all  law- 
ful acts  in  administration  upon  the  estate,  performed  by  such 
executor,  or  administrator  or  guardian,  if  he  have  qualified, 
are  as  valid  as  if  such  order  or  decree  had  been  affirmed. 
(Sec.  332,  Prob.  C.) 

Levisee,  p.  272. 

Consult  sec.  6277,  Rev.  Codes,  N.  D.,  chap.  15,  Post. 


POSTPONEMENT,  HEARING  AND  TRIAL.  289 


CHAPTER  XIV. 

Art.  5,  Chap.  3,  Probate  Code — North  Dakota, 
postponement,  hearing  and  trial. 

APPEARANCE  ON  CITATION— NEW  CITATION,  WHEN— POST- 
PONEMENT. §  6227  Rev.  Codes*  N.  D.  When  a  respondent 
fails  to  appear  at  the  time  specified  in  a  citation  the  court  must 
ascertain  from  the  proofs  of  service,  whether  he  has  been  duly 
cited  to  appear;  and  unless  the  service  is  deemed  sufficient  a 
new  citation  must  be  issued  to  such  party  or  parties  and  the 
hearing  must  be  postponed  until  the  time  therein  specified. 
(Adopted  through  Rev.  Com'rs. ) 

Consult  next  two  sections. 

POSTPONEMENT  AFTER  ISSUE  JOINED— SICKNESS  OF  JUDGE 
—OTHER  GROUNDS.  §  6228  Rev.  Codes  N.  D.  After  issue  is 
joined  by  the  pleadings  either  party  is  entitled  to  a  postpone- 
ment for  a  reasonable  time  to  procure  the  attendance  or  depo- 
sition of  a  witness  or  otherwise  prepare  for  the  trial.  A  rea- 
sonable postponement  may  also  be  granted  at  any  time  to  al- 
low a  party  to  plead,  or  for  any  other  meritorious  cause.  A 
postponement  may  also  be  ordered  because  the  judge  is  sick  or 
otherwise  engaged,  or  because  he  desires  time  in  which  to  pre- 
pare his  decision.     (Adopted  through  Rev.  Com'rs.) 

Consult  next  section. 

POSTPONEMENT  WITHOUT  APPLICATION— DAY  CERTAIN- 
EFFECT  OF  §  9229  Rev.  Codes  N.  D.  A  postponement  may 
be  ordered  without  a  written  application  and  an  adjournment 
of  the  court  from  time  to  time  in  the  progress  of  a  hearing 
operates  as  a  postponement  without  a  formal  order.  Every 
postponement  must  be  to  a  day  certain;  but  an  indefinite  post- 
ponement or  a  failure  to  resume  the  hearing  at  the  appointed 
time  by  reason  of  the  absence  of  the  judge  or  for  other  cause 
does  not  invalidate  or  otherwise  affect  any  act  previously  done, 
but  operates  only  as  a  postponement  of  the  hearing  until 
further  notice.  (Adopted  through  Rev.  Com'rs.) 
19-T  P 


290  PROBATE  CODE — NORTH  DAKOTA. 


Consult  preceding  section. 

TRIAL  OF  ISSUES— DECISION— ON  WHAT  PROOFS  TRIED.  § 
6230  Rev.  Codes  N.  D.  After  the  respondents  have  had  an  op- 
portunity to  plead  the  court  must  try  the  issues,  hear  the  alle- 
gations and  proofs  of  the  respective  parties,  and  make  such 
decision  upon  the  facts  thereby  found  as  justice  and  equity  re- 
quires. Every  issue  prescribed  by  section  6226  of  this  chap- 
ter must  be  tried  upon  the  testimony  of  witnesses  sworn  and 
examined  in  open  court  or  taken  in  the  form  of  deposition  ac- 
cording to  the  rules  of  evidence  applicable  in  a  civil  action  ex- 
cept when  the  same  are  modified  by  the  following  provisions  of 
this  article.     (Sec.  307,  Prob.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  266;  Consult,  for  sec.  307,  Prob.  Code,  sec.  13,  chap.  11, 
ante,  under  which  that  section  is  set  forth. 

ALL  FACTS  INQUIRED  INTO— DEPOSITION,  WHEN  NOT  USED. 
§  6231  Rev.  Codes  N.  D.  The  court  may  examine  the  parties 
and  other  witnesses  and  inquire  into  all  the  facts  and  circum- 
stances as  to  any  material  fact,  although  no  issue  is  joined 
thereon;  and  may  also  in  its  discretion  refuse  to  hear  the  depo- 
sition of  any  witness  residing  within  the  state,  who  is  compe- 
tent and  able  to  appear  and  give  testimony  in  person,  unless 
satisfied  that  the  necessary  expense  or  inconvenience  of  pro- 
curing his  attendance  ought  not  to  be  incurred.  (Adopted 
through  Rev.  Com'rs. ) 

Consult  preceding  section. 

TESTIMONY  OF  SICK,  ETC.,  WITNESS— HOW  TAKEN.  §6232 
Rev.  Codes  N.  D.  When  it  is  satisfactorily  shown  by  affidavit 
that  a  material  witness  within  the  county  is  so  aged,  sick  or  in- 
firm that  his  attendance  cannot  be  compelled  without  endanger- 
ing his  life  or  health  and  there  is  no  good  reason  to  suppose 
that  he  will  be  able  to  attend  within  a  reasonable  time  to  which 
the  hearing  may  be  postponed,  the  judge  shall  proceed  to  the 
place  where  the  witness  is  and  there  take  his  testimony  as  in 
open  court;  but  if  the  party  so  requests,  the  testimony  of  such 
witness  must  be  taken  in  the  form  of  a  deposition.  (Adopted 
through  Rev.  Com'rs. 


APPEALS.  291 

[Author's  Note.  The  following  section  is  taken  from  art.  4  chap. 
3,  Probate  Code,  N.  D.] 

ISSUE  IN  PROBATE  COURT— ORIGIN  OF.  §  6226  Rev.  Codes  N. 
D.  An  issue  arising  upon  each  of  the  following  allegations  of 
a  pleading: 

1.  Upon  each  averment  in  the  petition  of  the  execution  of 
a  will,  or  of  the  death  of  any  person  when  necessary  to  juris- 
diction, or  of  any  tact  alleged  as  cause  for  setting  aside  a  de- 
cree or  order  of  the  court,  although  not  controverted  by  an- 
swer. 

2.  Upon  every  other  material  allegation  of  a  petition 
which  is  controverted  by  answer. 

3.  Upon  every  fact  alleged  in  the  answer  except  an  ad- 
mission of  a  fact  alleged  in  the  petition,  f  Adopted  through 
Rev.  Com'rs. ) 

Consult,  asito  issues  in  district  court,  sec.  5415,  Rev.  Codes,  chap.  1, 
ante,  p.  1. 


CHAPTER  XV. 


Art.  9,  Chap.  3,  Probate  Code— North  Dakota. 

APPEALS. 

APPEALS— WHO  MAY  TAKE—FROM  WHAT.  §  6254  Rev. 
Codes  N.  D.  Any  party  or  other  person  specified  in  the  next 
section  who  deems  himself  aggrieved  may  appeal,  as  pre- 
scribed in  this  article,  from  a  decree  or  from  any  order  affect- 
ing a  substantial  right  made  by  a  county  court  to  the  district 
court  of  the  same  county.  (Sec.  312,  Prob.  C,  Am'd  Rev. 
Com'rs.) 

Levisee,  p.  268. 

Consult  next  section;  sees.  5962,  5963,  Com  p.  Laws,  chap.  13,  ante. 

PARTY  TO  APPEAL— INTEREST  IN  APPEAL.  §  6255  Rev. 
Codes  N.  D.  Each  person  who  was  a  party  to  the  proceeding 
in  the  county  court  and  each  other  person,  who  has  or  claims 
in  the  subject  matter  of  the  decree  or  order,  a  right  or  interest 


292  PROBATE  CODE — NORTH  DAKOTA. 

which  is  affected  by  an  appeal  must  be  made  a  party  to  the 
appeal.     (Sec.  314,  Prob.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  268. 

Consult  preceding  section;  sec.  5964,  Comp.  Laws,  chap.  13,  ante. 

APPEAL,  HOW  EFFECTED— NOTICE  OF,  HOW  GIVEN.  §  6256 
Rev.  Codes  N.  D.  To  affect  an  appeal  the  appellant  must 
cause  a  notice  of  the  appeal  to  be  served  on  each  of  the  other 
parties  and  file  such  notice  with  the  proofs  of  service,  and  an 
undertaking  for  appeal  in  the  county  court  within  thirty  days 
from  and  after  the  date  of  the  order  or  decree;  but  when  the 
party  taking  an  appeal  files  such  notice  and  announces  the  fil- 
ing orally  in  open  court  at  the  time  when  the  decision  is  given 
no  other  or  further  service  of  the  notice  is  necessary.  (Sec. 
315,  Prob.  Co.,  am'd  Rev.  Com'rs.) 

Levisee,  p.  268. 

Consult  two  preceding  sections;  sec  5966,  Comp.  Law%  chap.  13,  ante. 

FROM  CONTEMPT  ORDER,  HOW  EFFECTED— DEPOSIT.  §  6257 
Rev.  Codes  N.  D.  An  appeal  from  an  order  which  directs 
the  payment  of  a  fine  as  a  punishment  for  a  contempt  is  not  ef- 
fected, unless  the  amount  of  the  fine  is  also  deposited  with  the 
county  judge  within  the  prescribed  time  to  abide  the  order  of 
the  appellate  court.     (Sec.  319,  Prob.    C,  am'd  Rev.   Com'rs.) 

Levisee,  p.  269. 

Consult  preceding  section;  sec.  5969,  Comp.  Laws,  chap.  13,  ante. 

EXECUTOR,  ETC.— NO  APPEAL  BOND— OFFICIAL  BOND  IN 
LIEU  OF.  §  6258  Rev.  Codes  N.  D.  An  executor,  administra- 
tor or  guardian  may  appeal  without  filing  an  undertaking  from 
a  decree  or  order  made  in  any  proceding  in  a  case  in  which  he 
has  given  an  official  bond;  and  when  he  appeals  in  that  man- 
ner the  bond  stands  in  place  of  such  undertaking.  A  special 
guardian  may  appeal  without  filing  an  undertaking  although 
he  has  not  given  bond,  but  the  appeal  w^ill  not  operate  as  a 
stay  unless  taken  from  an  order  which  grants  or  refuses 
a  transfer  of  the  case.  (Sec.  331,  Prob.  C,  am'd  Rev. 
Com'rs. ) 

Levisee,  p.  272. 

Consult  sec.  6256,  SM;pra\  sec.  5981,  Comp.  Laws,  chap.  13,  ante. 


At>PEALS.  293 

NEGLECT  TO  PERFECT  APPEAL— EXTENDING  TIME— AMEND- 
MENT. §  6259  Rev.  Codes  N.  D.  When  the  appellant  season- 
ably and  in  good  faith  serves  a  notice  of  appeal  on  some  of  the 
parties,  but  through  mistake  or  excusable  neglect  fails  to  ob- 
tain service  on  all,  or  in  like  manner  omits  to  do  any  other  act 
necessary  to  perfect  the  appeal  or  effect  a  stay,  the  county 
court  upon  proofs  of  the  facts  by  affidavit  may,  in  its  discre- 
tion, extend  the  time  for  perfecting  the  service  or  other  act 
and  permit  an  amendment  accordingly  upon  such  terms  as  jus- 
tice requires.     (Sec.  328,  Prob.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  271. 

Consult  sec.  6256,  stipra;  sees.  5977,  5978,  Comp.    Laws,  chap.  13,  ante. 

PARTIES  TO  APPEAL,  HOW  BROUGHT  IN— APPEARANCE 
ABOVE.  §  6260  Rev.  Codes  N.  D.  A  party  specified  in  section 
6255,  who  was  not  served  with  notice  by  reason  of  the  fact  that 
his  interest  or  claim  did  not  appear  upon  the  records  of  the 
county  court  at  the  time  when  the  appeal  was  taken,  is  deemed 
to  have  been  duly  served  from  the  time  when  he  appears  in  the 
district  court  for  any  purposd  connected  with  the  appeal,  or  he 
may  be  brought  in  by  order  of  the  district  court  on  such  notice 
as  the  court  shall  prescribe.     (Adopted  through  Rev.  Com'rs. ) 

Consult  sees.  6254,  6255,  supra. 

APPEAL  ON  LAW  QUESTIONS  ALONE,  HOW  PERFECTED-RESTRIC- 
TION OF  APPEAL  §6261  Rev.  Codes  N.  D.  For  the  purpose  of 
taking  an  appeal  on  questions  of  law  alone,  the  notice  must  con- 
tain a  statement  ti>  that  effect,  and  specify  the  errors  in  law 
which  the  appellant  intends  to  rely  on  as  grounds  of  the  ap- 
peal and  the  time  and  place  at  which  the  appeal  will  be 
brought  on  for  trial.  Every  other  notice  of  appeal  is  sufficient 
which  designates  the  party  who  appeals  and  the  order  or  de- 
cree from  which  the  appeal  is  taken  and  the  intermediate  ord- 
ers if  any  upon  which  the  appellant  desires  a  review.  And  ev- 
ery appeal  must  be  held  to  have  been  taken  upon  the  facts  and 
matter  in  law  generally,  unless  the  notice  clearly  indicates  an 
intention  to  appeal  on  questions  of  law  alone,  but  the  appel- 
lant may  by  his  notice  restrict  the  appeal  to  any  specific  direc- 
tion or  award  contained  in  a  decree,  if  the  issue  upon  which 


294  PROBATE  CODE— NONTH  DAKOTA. 

the  same  depends  can  be  separately  tried  and  determined  with- 
out prejudice  to  any  other  part  of  the  decree.  (Sec.  316, 
Prob.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  268. 

Consult  sees.  6256,  s^ipra'^  sec.  6271,  infra;  sec.  5975,  Comp.  Laws, 
chap.  13,  ante. 

SPECIFICATION  OF  ERRORS.  §  6262  Rev.  Codes  N.  D.  A 
specification  of  errors  may  contain  a  reference  to  each  particu- 
lar error  appearing  of  record  in  the  decree  or  order  in  the  pro- 
ceedings on  which  it  is  founded  to  which  the  appellant  ob- 
jects without  giving  any  reason  for  the  objection  and  no  other 
form  of  exception  is  necessary.  (Adopted  through  Rev. 
Com-rs. ) 

Consult  sees.  6274,  6271,  infra. 

UNDERTAKING  ON  APPEAL— SAME,  FOR  STAY.  §  6263  Rev. 
Codes  N.  D.  An  undertaking  on  appeal  must  be  executed  in 
favor  of  the  appellees  in  such  sum  as  the  county  court  shall 
prescribe  by  the  appellant  or  his  agent  or  attorney  in  his  name 
and  sufficient  sureties  approved  by  the  judge,  to  the  effect  that 
the  subscribers  will  pay  to  the  parties  entitled  thereto  all  costs 
of  the  appeal  that  shall  be  awarded  against  the  appellant  by 
direction  of  the  district  court  not  exceeding  the  sum  therein 
stated.  But  the  execution  or  enforcement  of  the  decree  or  ord- 
er appealed  from  shall  not  be  stayed,  unless  the  instrument 
contains  a  further  undertaking  to  the  effect  that  the  subscribers 
will  also  pay  all  damages  which  the  appellees  or  any  of  them 
shall  sustain  by  reason  of  the  appeal  or  a  separate  undertaking 
to  that  effect  executed  and  filed  in  like  manner.  (Sec.  317, 
Prob.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  269. 

Consult  next  two  sections;  sec.  5967,  Comp.  Laws,  chapter  13, 
ante. 

UNDERTAKING,  AMOUNT  OF— SURETIES  EXAMINED— NEW  UN- 
DERTAKING, WHEN— DISMISSAL  §  6264  Rev.  Codes.  The  sum 
prescribed  in  an  undertaking  for  costs  must  not  be  less  than 
one  hundred  dollars.  The  sum  prescribed  in  an  undertaking 
for  damages  shall  be  such  further  sum  as  the  judge  deems  suf- 


APPEALS.  295 

ficient,  and  to  aid  him  in  determining  the  same  or  the  suffi- 
ciency of  the  sureties,  the  judge  may  examine  the  sureties  and 
other  witnesses  under  oath.  After  an  appeal  is  perfected  the 
district  court  may  by  order  require  the  appellant  to  give  a  new 
undertaking  in  a  larger  sum  or  with  other  sureties  when  the 
sum  specified  in  the  original  undertaking  is  deemed  insuffi- 
cient or  a  surety  is  found  to  be  insolvent,  has  removed  from 
the  state  or  is  of  doubtful  financial  responsibility,  a,nd  unless 
the  order  is  complied  with  the  appeal  may  be  dismissed  or  the 
stay  dissolved  as  the  case  requires.  (Sec.  320,  Prob.  C, 
am'd  Rev.  Com'rs. ) 

Levisee,  p.  269-70. 

Consult  preceding  section;  sec.  5967,  Comp.  Laws,  chapter  13  ante. 

UNDERTAKING,  OBLIGATIONS  OF— MATURITY  OF— ACTION  ON. 
§  6265  Rev.  Codes  N.  D.  The  prescribed  undertaking  for  the 
payment  of  damages  creates  an  obligation  on  the  part  of  the 
principal  and  sureties  executing  the  same  to  compensate  each 
of  the  appellees  for  all  pecuniary  loss  and  injury  which  he 
shall  sustain  in  consequence  of  the  appeal  respecting  each  and 
every  right  or  claim  which  was  determined  or  enforced  in  his 
favor  by  the  decree  or  order  from  which  the  appeal  is  taken  so 
far  as  the  same  shall  be  affirmed  or  otherwise  sustained  by  the 
appellate  court.  When  the  decree  or  order  directs  the  appel- 
lant or  another  party  to  pay  or  deliver  money  or  other  pro- 
perty, or  to  perform  any  other  act  to  which  the  stay  applied, 
all  loss  and  injury  sustained  by  an  appellee  in  consequence,  of 
its  detention  from  the  time  when  the  direction  was  given,  or 
by  reason  of  any  failure  on  the  part  of  the  appellant  or  such 
other  party  to  pay  or  deliver  the  same  in  accordance  with  the 
decision  or  direction  of  the  appellate  court,  ^nd  in  as  good  con- 
dition as  at  the  time  when  he  was  directed  to  do  so  by  the 
county  court,  is  deemed  to  be  sustained  in  consequence  of  the 
appeal.  When  the  order  directs  the  commitment  of  the  appel- 
ant or  another  person  for  disobeying  any  order  except  for  the 
payment  of  a  tine,  all  loss  and  injury  resulting  from  his  dis- 
obedience is  likewise  deemed  to  have  been  suffered  in  conse- 
quence of  the  appeal.     The  obligation  matures  at  the  time  of 


296  PROBATE  CODE — NORTH  DAKOTA. 

the  decision  in  the  appellate  court,  but  no  action  can  be  main- 
tained thereon  until  ten  days  thereafter.  (Sees.  315-319, 
Prob.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  pp.  268,  269. 

Consult  two  preceding  sections,  and  next  section;  sec.  5968,  Comp. 
Laws,  chap.  13,  ante. 

APPEAL  STAYS  PROCEEDINGS,  WHEN,  UNTIL  WHEN.  §6266 
Rev.  Codes  N.  D.  Except  when  there  is  an  express  provis- 
ion to  the  contrary  in  this  article,  a  perfected  appeal  stays  the 
execution  or  enforcement  of  the  decree  or  order.appealed  from 
until  there  has  been  a  determination  of  the  appeal  or  a  dissolu- 
tion of  the  stay  in  the  district  court;  and  an  appeal  from  an 
order  granting  or  refusing  a  transfer  of  the  case  likewise  stays 
all  further  proceedings  in  that  case.  In  other  respects  the  de- 
cree or  order  of  the  county  court  remains  unaffected  until  re- 
versed or  modified  by  direction  of  the  appellate  court.  (Adopt- 
ed through  Rev.  Com'rs. ) 

See  sec.  318,  Prob.  C;  Levisee,  p.  269. 

Consult  sees.  6256,  6263,  supra;  sec.  5968,  Comp.  Laws,  chap.  13, 
ante. 

APPEAL  DOES  NOT  STAY  PROBATE  OF  WILL,  OR  LETTERS, 
WHEN— REALTY  SALES— DISTRIBUTION.  §  6267  Rev.  Codes  N.  D. 
An  appeal  from  a  decree  or  order  admitting  a  will  to  probate 
or  granting  letters  testamentary,  or  letters  of  administration, 
does  not  stay  the  issuing  of  letters  when,  in  the  opinion  of  the 
county  judge  manifested  by  an  entry  upon  the  journal,  the 
preservation  of  the  estate  requires  that  such  letters  should  is- 
sue. But  the  letters  so  issued  do  not  confer  power  to  sell  real 
property  by  virtue  of  any  provision  in  a  will  or  to  pay  or  satis- 
fy legacies,  or  to  distribute  the  property  of  the  decedent  until 
the  determination  of  the  appeal.     (Sec.  322,  Prob.  C. ) 

Levisee,  p.  270. 

Consult  preceding  section;  sec.  5972,  Comp.  Laws,  chap.  IS,  ante. 

DECREE  FOR  SPECIAL  ADMINISTRATOR,  OR  REVOKING  PRO- 
BATE OF  WILL— APPEAL  NO  STAY.  §  6268  Rev.  Codes  N.  D.  An 
appeal  does  not  stay  the  execution  or  enforcement  of  a  decree  or 
order  which  appoints  a  special  administrator  or  revokes  the 


APPEALS.  297 

probate  of  a  will  or  suspends  or  removes  an  executor,  adminis- 
trator or  guardian,  or  revokes  his  appointment.  (Sec.  323, 
Prob.    C,  am'd   Rev.  Com'rs. ) 

Levisee,  p.  270. 

Consult  preceding  section;  sec.  5973,  Comp.  Laws,  chap.  13,  ante. 

TRANSCRIPT  ON  APPEAL,  JUDGE  PERFECTS— ORDER  REQUIR- 
ING, WHEN.  §  6269  Rev.  Codes.  When  an  appeal  is  perfected,  the 
county  judge  must  make  and  certify  to  the  district  court  a  com- 
plete transcript  of  the  papers  and  other  records  upon  which 
the  appeal  is  taken  or  so  much  thereof  as  may  be  material  to- 
gether with  the  notice  of  appeal  and  proof  of  service,  the  un- 
dertaking and  other  matters  of  record  relating  to  the  appeal; 
and  unless  such  transcript  is  delivered  to  the  clerk  within  ten 
days,  the  district  court  may  on  motion  of  any  party  interested 
require  and  compel  him  to  make  and  certify  the  same  and  may 
in  like  manner  require  him  to  amend  the  transcript  as  often  as 
may  be  necessary  or  to  certify  and  send  up  a  will  or  other  writ- 
ten instrument  in  its  original  form.  When  all  the  proofs  upon 
which  the  court  acted  appear  in  the  transcript  the  certificate 
shall  so  state.     (Sees.  324-327,  Prob.    C,  am'd  Rev.  Com'rs.) 

Levisee,  pp.  270-1. 

Consult  sec.  6272,  irifra\  sec.  5974,  Comp.  Laws,  chapter  13,  ante. 

DOCKETING  APPEAL— CALENDAR—NO  NOTICE  OF  TRIAL,  ETC. 
—DISPOSITION  OF  CASE  §  6270  Rev.  Codes  N.  D.  Upon  the  de- 
livery of  such  transcript  and  payment  of  the  clerk's  fees,  the 
appeal  must  be  docketed  in  the  district  court  and  placed  on  the 
calendar  of  causes  for  trial  according  to  the  date  on  which  it 
was  perfected  and  without  a  notice  of  trial  or  note  of  issue  at 
the  next  term  convening,  not  less  than  ten  days  after  the  tak- 
ing of  the  appeal,  and  must  be  disposed  of  accordingly  during 
the  term,  unless  sooner  disposed  of  in  pursuance  of  the  pro- 
visions of  the  next  section.     (Adopted  through   Rev.    Com'rs.) 

Sec.  316,  Prob.  C;  sec.  5966,  Comp.  Laws,  Chap.  13,  ante. 

'appeal   on  questions  OF  LAW— WHEN  HEARD— NEW  NO- 
TICE.    §  6271  Rev.    Codes  N.  D.     When  the  appeal  is   taken 
upon  questions  of  law  alone,   the   time  and   place  of  hearing 
19i— T  P 


298  PROBATE  CODE — NORTH  DAKOTA. 

specified  in  the  notice  of  appeal  may  be  any  time  and  place  at 
which  an  issue  of  law  may  be  tried  in  the  district  court,  and  a 
hearing  may  be  had  accordingly;  provided,  however,  that  such 
time  shall  not  be  less  than  ten  days  after  the  service  of  the  no- 
tice, nor  later  than  the  first  day  of  the  term  specified  in  the 
preceding  section.  Upon  a  failure  to  obtain  a  hearing  a  new  no- 
tice of  the  time  and  place  of  hearing  may  be  given  as  often  as  may 
be  necessary,  and  the  appeal  may,  notwithstanding  any  such  no- 
tice, be  brought  to  a  hearing  at  any  time  by  an  appellee  upon  a 
like  notice  served  on  the  appellant  or  his  attorney  of  record  in 
the  county  court,     (Adopted  through  Rev.  Com'rs. ) 

CJonsult  sees.  6260,  6271,  supra;  sees.  5792,  5975,  Comp.  Laws,  chap.  13, 
ante. 

DISMISSAL  OF  APPEAL,  WHEN— COSTS.  §  6272  Rev.  Codes 
N.  D.  If  the  transcript  is  not  certified  to  the  district  court  on 
or  before  the  second  day  of  the  term  designated  in  section  6270 
and  the  appellant  does  not  make  application  for  an  order  re- 
quiring the  same  to  be  certified  forthwith  or  if  the  appeal  has 
not  been  sooner  disposed  of  and  the  appellant  fails  to  do  any 
act  necessary  in  order  to  have  the  same  docketed  and  brought 
upon  the  calendar  on  or  before  the  second  day  of  such  term, 
any  appellee  may  have  the  same  so  entered  by  order  of  the 
court  upon  the  production  of  a  certified  copy  of  the  decree  or 
order  appealed  from  and  the  notice  of  appeal  and  thereupon 
the  appeal  shall  be  summarily  dismissed  with  ten  dollars  costs 
to  such  appellee,  unless  the  appellant  satisfactorily  excuses  his 
default  and  forthwith  pays  such  costs.  (Adopted  through 
Rev.  Com'rs.) 

Consult  sec.  6269,  supra;  sec.  5977,  Comp.  Laws,  chap.  13,  ante. 

DISMISSAL  OF  APPEAL,  IS  AFFIRMANCE.  §  6273  Rev.  Codes 
N.  D.  A  dismissal  of  an  appeal  by  order  of  the  district  court 
in  pursuance  of  any  provision  of  this  article  is  in  effect  an  aflir- 
mance  of  the  decree  or  order  appealed  from.  (Sec.  328,  Prob. 
C,  am'd  Rev.  Com'rs. 

Levisee,  p.  271. 

Consult  preceding  section;  sec.  5978,  Comp.  Laws,  chap.  13,  ante. 


AfPfiALS.  ^99 

POWER  OF  APPELLATE  COURT,  ON  LAW  APPEAL— CORRECTING 
ERRORS— SPECIFICATIONS  OF.  §  6274  Rev.  Codes  N.  D.  At  a 
hearing  in  the  district  court  on  an  appeal  taken  upon  questions 
of  law  alone  the  decree  or  order  of  the  county  court  shall  be 
reviewed  only  so  far  as  may  be  necessary  and  with  a  view  to 
correct  errors  appearing  upon  the  record  which  injuriously  af- 
fect a  right  or  claim  of  the  appellant  and  are  specified  in  the 
notice  of  appeal;  but  when  a  specification  relates  to  a  discre- 
tionary award  or  direction  given  upon  facts  shown  by  the  rec- 
ord, the  district  court  has  the  same  discretion  that  the  county 
court  had.  Each  specification  may  be  overruled  or  sustained 
according  as  the  right  of  the  matter  appears  and  the  court 
shall  give  its  decision  accordingly,  affirming  or  reversing  the 
decree  or  order  appealed  from  or  reversing  in  part  and  affirm- 
ing as  to  the  remainder,  with  such  directions  as  may  be  neces- 
sary or  proper  respecting  the  decree  or  order  to  be  entered  in 
the  county  court.     (Sec.  325,  Prob.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  271. 

Consult  sees.  6260,  6261,  6271,  supra;  sec.  5975,  Comp.  Laws,  chap, 
13,  ante. 

TRIAL  DE  NOVO— PROCEDURE -REVIEW  OF  INTERMEDIATE 
ORDER— AMENDMENTS— RECORD.  §  6275  Rev.  Codes  N.  D. 
When  an  appeal  is  taken  generally,  all  the  issues  must  be  tried 
and  determined  anew  in  the  district  court  and  the  court  must 
hear  the  allegations  and  proofs  of  the  parties  and  determine 
all  questions  of  law  and  fact  arising  thereon  according  to  the 
mode  of  trying  similar  issues  originating  in  that  court,  except 
that  an  issue  involved  in  the  probate  of  a  will  and  issues  aris- 
ing upon  a  petition  for  the  allowance  of  a  claim  or  demand  for 
money  only  must  be  tried  according  to  the  mode  of  trying  is- 
sues to  a  jury  if  a  jury  is  demanded.  When  the  appeal  is  tak- 
en from  a  decree  or  final  order,  the  court  may  before  trying 
the  issues  review  any  intermediate  order  specified  in  the  notice 
of  appeal,  which  materially'  affected  the  issues  and  vacate  the 
same  or  otherwise  make  such  order  as  the  county  court  ought 
to  have  made.  And  uppn  every  appeal  taken  generally  the 
court  has  the  same  power  that  the  county  court  had  to  perniit 


300  PROBATE  CODE — NORTH  DAKOTA. 

or  direct  a  pleading  to  be  filed  or  otherwise  amend  the  issues 
and  try  the  same  accordingly,  but  in  other  respects,  when  the 
proofs  on  which  the  county  court  acted  were  submitted  in  the 
form  of  affidavits  or  otherwise  appear  of  record,  the  appeal 
must  be  determined  upon  the  certified  transcript.  (Sec.  326, 
Prob.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  271. 

Ck)nsult  preceding  section;  sec.  5976,  Comp.  Laws,  chap.  13,  ^nte,  and 
decisions  thereunder. 

FINDINGS  ON  APPEAL,  AND  DIRECTIONS  TO  COURT  BELOW. 
§  6276  Rev.  Codes  N.  D,  A  decision  of  the  district  court  upon 
the  facts  must  designate  the  issues  tried  and  contain  the  ma- 
terial facts  found  by  the  court,  or  the  substance  of  the  ver- 
dict returned  by  the  jury,  as  the  case  may  be,  and  the  direction 
of  the  court  thereon  affirming  the  decree  or  order  from  which 
the  appeal  was  taken  generally,  or  reversing  the  same  or  a  dis- 
tinct part  thereof  as  justice  requires  and  as  to  any  or  all  of  the 
parties,  with  specific  directions  respecting  the  decree  or  order 
to  be  entered  in  the  county  court.  (Adopted  through  Rev. 
Com'rs. ) 

Consult  two  preceding-  sections;  sees.  6975,  5976,  Comp.  Laws,  chap.  13, 
ante,  and  decisions  under  latter  section, 

REVERSAL  DOES  NOT  AFFECT  WHAT  ACTS  BELOW.  §  6277 
Rev.  Codes  N.  D.  The  reversal  of  a  decree  or  order  of  the 
county  court  for  any  cause  except  for  want  of  jurisdiction  does 
not  affect  the  validity  of  any  act  otherwise  lawfully  done  in 
pursuance  of  the  order  or  decree,  and  in  the  course  of  the  ad- 
ministration by  an  executor,  administrator  or  guardian  while 
the  appeal  is  pending.  (Sec.  332,  Prob.  C,  am'd  Rev. 
Com'rs. ) 

Levisee,  p.  272. 

Consult  sec.  5982,  Comp.  Laws,  chap.  13,  ante. 

COSTS,  DIRECTIONS  AS  TO— WHO  PAYS.  §  6278  Rev.  Codes 
N.  D.  The  costs  of  an  appeal  shall  be  settled  and  determined 
by  the  district  court  agreeably  to  the  provisions  of  section  6240 
of  this  chapter  except  that  like  fees  and  disbursements  may  be 
allowed  as  in  other  cases  in  that  court.     The  amount  of  costs 


APPEALS.  301 

SO  allowed  shall  be  stated  in  the  order  or  decision  which  de- 
termines the  appeal,  with  a  direction  specifying  the  party  in 
whose  favor  and  the  party  against  whom  the  same  shall  be 
awarded  by  the  county  court.  If  the  appellant  is  required  to 
pay  costs,  the  amount  thereof  shall  be  awarded  by  the  county 
court  jointly  agairst  him  and  the  sureties  on  his  undertaking 
as  prescribed  in  the  next  section  without  an  express  direction 
to  tha*  effect.     (Sec.  329,  Prob.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  271-2. 

As  to  fees  of  clerk  of  district  court,  see  sec.  2061,  Rev.  Codes,  et  seq; 
as  to  costs  and  disbursements  in  that  court,  see  sec.  5574,  Rev,  Codes, 
et  seq. 

DECISION  ON  APPEAL,  ENTRY  OF— REMITTITUR— EFFECT  OF 
STAY  ON— ENTRY  BELOW— ENFORCEMENT.  §  6079  Rev.  Codes  N. 
D.  Each  order  or  decision  of  the  district  court  which 
dismisses  or  determines  an  appeal  and  each  preliminary 
order  which  affects  the  merits  must  be  given  in  writing 
and  filed  with  the  clerk  and  by  him  entered  of  record, 
after  which  the  clerk  shall  attach  thereto  the  original  of 
each  paper  filed  by  the  parties  in  the  district  court 
and  each  paper  certified  to  that  court  in  the  original  form  and 
certify  and  transmit  the  same  without  delay  to  the  county  court 
there  to  become  part  of  the  record;  but  when  a  stay  is  grant- 
ed or  effected  in  the  district  court,  they  shall  not  be  transmit- 
ted until  the  stay  has  expired.  Each  order  or  decision  so 
transmitted  shall  be  immediately  entered  in  the  journal  and  a 
decree  or  order  as  the  case  requires  shall  likewise  be  entered 
by  the  county  court  in  conformity  to  the  directions  of  the  ap- 
pellate court  and  be  enforced  in  the  same  manner  as  other  de- 
crees or  orders  of  the  county  court.  (Sec.  330,  Prob.  C,  am'd 
Rev.    Com'rs. ) 

Levisee,  p.  272. 

Consult  sec.  6276,  6275,  sicpra;  sec.    5980  Comp.    Laws,   chap.    13,  ante. 


302  justice's  code— south  dakota. 


CHAPTER  XVI. 

Art.  9,  Chap.  1,  Justice's  Code,— South  Dakota, 
time  of  trial  and  postponements. 

TRIAL  COMMENCES  WHEN— POSTPONEMENT.  §  6084  Comp. 
Laws.  Unless  postponed  as  provided  in  this  article,  or  unless 
transferred  to  another  court,  the  trial  of  the  action  must  com- 
mence at  the  expiration  of  one  hour  from  the  time  specified  in 
the  summons  for  the  appearance  of  defendant,  and  the  trial 
must  be  continued  without  adjournment  for  more  than  twenty- 
four  hours  at  any  one  time,  until  all  the  issues  therein  are  dis- 
posed of. 

Sec.  44,  Jus.  C;  Levisee,  p.  297. 

.CJonsult  next  three  sections  and  sec.  6140,  infra;  sec.  6645,  Rev.  Codes, 
N.  D.,  chap.  21,  Post. 

POSTPONEMENT  ON  COURT'S  MOTION— IN  WHAT  CASES  AND 
HOW  LONG.  §  6085  Comp.  Laws.  The  court  may,  of  its  own  mo- 
tion, postpone  the  trial: 

1.  For  not  exceeding  one  day,  if,  at  the  time  specified  in 
the  summons,  or  by  an  order  of  the  court  for  the  trial,  the 
court  is  engaged  in  the  trial  of  another  action. 

For  not  exceeding  two  days,  if,  by  an  amendment  of  the 
pleadings,  or  the  allowance  of  time  to  make  such  amendment, 
or  to  plead,  a  postponement  is  rendered  necessary, 

3.  For  not  exceeding  three  days,  if  the  trial  is  upon  is- 
sues of  fact,  and  a  jury  has  been  demanded. 

Sec.  45,  Jus.  C;  Levisee,  p.  297. 

Consult  preceding  section,  and  two  following  sections,  and  sec.  6140, 
6144,  infra,  sec.  6646,  Rev.  Codes,  N.  D.  chap.  21,  Post, 

Jurisdiction  Liimited  By  Statute.  A  justice  of  the  peace,  having  no  im- 
plied authority  to  act  judicially,  is  limited  in  the  exercise  of  such  power  by 

express  provisions  of  statute.     Leonosio  v.  Bartilino, S.  D ,  63  N.  W. 

543.  Siunmoiis  Returnable  on  Holiday — Continuance — Judgment  Void. 
In  an  action  to  recover  a  specific  sum  of  money  had  and  received,  a  relief 
summons  was  issued  by  a  justice,  returnable  November  7,  1893— the  day  on 
which  an  annual  election  was  held  throughout  the  state;  and  the  justice,  on 
his  own  motion,  postponed  the  hearing  until  10  o'clock  a.   m.    of   next  day, 


TIME  OF  TRIAL  AND  POSTPONEMENTS.  803 

when  defendant  appeared  in  person,  and  moved  an  adjournment,  and,  upon 
denial  tliereof,  refused  to  proceed  further;  Held,  that  no  action  was  com- 
menced, either  by  issuance  of  the  summons,  or  by  the  voluntary  appearance 
and  pleading  of  the  parties,  under  sec.  6050,  Comp.  Laws,  and  that  judgment 
rendered  against  defendant  was  nugatory  and  void.  Id;  Harvester  Co.  v. 
Forberg,  2  S.  D.  357,  50  N.  W.  628;  Peck  v.  Cavell,  16  Mich.  10;  Allen  v. 
Godfrey,  44  N.  Y.  4.33;  1  Black.  Judg.  182;  5  Am.  &  Eng.  Enc.  of  Law,  85, 
and  cases  cited;  People  v.  Schwartz,  3  Abb.  Pr.  (N.  S.)  395. 

POSTPONEMENT  BY  CONSENT  §  6086  Comp  Laws.  The  court 
may,  by  consent  of  the  parties,  ^iven  in  writing  or  in  open 
court,  postpone  the  trial  to  a  time  agreed  upon  by  the  parties. 

Sec.  46,  Jus.  C;  Levisee,  p.  297. 

Consult  two  preceding  sections,  and  next  section. 

See  Leonosio  v.  Bartilino,  cited  under  preceding  section. 

ON  PARY'S  APPLICATION— SHOWING  NECESSARY— DEPOSI- 
TIONS, WHEN  AND  HOW  TAKEN.  §  6087  Comp.  Laws.  The,  trial 
may  be  postponed  upon  the  application  of  either  party,  for  a 
period  not  exceeding  sixty  days: 

1.  The  party  making  the  application  must  prove,  by  his 
own  oath  or  otherwise,  that  he  cannot,  for  want  of  material 
testimony,  which  he  expects  to  procure,  safely  proceed  to  trial, 
and  must  show  in  what  respect  the  testimony  expected  is  ma- 
terial, and  that  he  has  used  due  diligence  to  procure  it,  and  has 
been  unable  to  do  so. 

The  party  making  the  application  must,  if  required  by  the 
adverse  party,  consent  that  the  testimony  of  any  witness  of 
such  adverse  party,  who  is  in  attendance,  may  be  then  taken 
by  deposition  before  the  justice,  and  that  the  testimony  so  tak- 
en may  be  read  on  the  trial,  with  the  same  effect,  and  subject 
to  the  same  objections  as  if  the  witness  was  produced;  but  the 
court  may  require  the  party  making  the  application  to  state, 
upon  affidavit,  the  evidence  which  he  expects  to  obtain;  and  if 
the  adverse  party  thereupon  admits  that  such  evidence  would 
be  given,  and  that  it  be  considered  as  actually  given  on  the 
trial,  or  offered  and  overruled  as  improper,  the  trial  must  not 
be  postponed. 

3.  If  the  trial  be  postponed  the  deposition  of  witnesses  re- 
siding out  of  the  county  or  state  may  be  taken  either  upon  com- 


304  JUSTICE'S  CODE— SOUTH  DAKOTA. 

mission  issued  by  the  justice,  or  upon  notice  to  take  deposi- 
tions in  the  same  manner  as  is  provided  by  the  code  of  civil 
procedure;  and  su'^h  depositions  shall,  when  completed,  be  di- 
rected to  the  justice,  and  be  published  by  the  justice  in  the 
same  manner  as  depositions  are  published  by  the  clerk  of  the 
circuit  court.  (Sec,  47,  Jus.  C,  am'd  sec.  1,  chap.  86, 
Laws  1885,  Dak.) 

Sec.  47,  Jus.  C,  Levisee,  p.  297-8. 

Consult  three  preceding  sections  and  next  section;  sec.  6649,  Rev. 
Codes,  N.  D.,  chap.  21,  Post.    • 

As  to  depositions,  see  sees.  5288  to  5297,  Comp.  Laws,  sec.  474  to  483, 
C.  C.  P.;  Levisee,  pp.  134  to  136. 

UNDERTAKING,  ON  ADJOURNMENT  MORE  THAN  TEN  DAYS- 
SURETIES.  §  6088  Comp.  Laws.  No  adjournment  must,  unless 
by  consent,  be  granted  for  a  period  longer  than  ten  days,  upon 
the  application  of  either  party,  except  upon  condition  that  such 
party  file  an  undertaking,  in  an  amount  fixed  by  the  justice, 
with  two  sureties,  to  be  approved  by  the  justice,  to  the  effect 
that  they  will  pay  to  the  opposite  party  the  amount  of  any 
judgment  which  may  be  recovered  against  the  party  applying, 
not  exceeding  the  sum  specified  in  the  undertaking. 

Sec.  48,  Jus.  C;  Levisee,  p.  298. 

Consult  three  preceding  sections;  sec.  6651,  Rev.  Codes,  N.  D.,  chap. 
21,   Post. 

[Author's  Note.  The  following  section  is  taken  from  art.  7,  Jus- 
tice's Code,  being  sec.  6077,  Comp.  Laws,  sec.  38  Jus.  Code,  Levisae,  p.  295, 
and  is  inserted  here  as  pertaining  to  the  general  subject  treated  in  this 
chapter.] 

FORCIBLE  ENTRY  AND  DETAINER— APPEARANCE-PLEADINGS— 
CONTINUANCE— UNDERTAKING.  §  6077  Comp.  Laws.  The 
time  for  appearance  and  pleading  must  not  be  less  than  two  nor 
more  than  four  days  from  the  time  the  summons  is  served  on 
the  defendant,  and  no  adjournment  or  continuances  shall  be 
made  for  more  than  five  days,  unless  the  defendant  applying 
therefor  shall  give  an  undertaking  to  the  plaintiff  with  good 
and  sufficient  surety,  to  be  approved  by  the  justice,  conditioned 
for  the  payment  of  the  rent  that  may  accrue,  together  with  the 
costs,  if  judgment  be  rendered  against  the  defendant. 


TIME  OF  TRIAL  AND  POSTPONEMENTS.  305 

Sec.  38,  Jus.  C;   Levisee,  p.  295. 

Consult  the  chapter  on  "Forcible  Entry  and  Detainer,"  art.  7,  Jus. 
Code,  Levisee,  pp.  294-296;  Comp.  Laws,  sees.  6072  to  6081. 

DesigTi  of  Statute — Character  of  Possession  Necessary — Title — Cer- 
tifying Case  Up.  The  design  of  the  statute  on  forcible  entry  and  detainer 
is  to  furnish  one  entitled  to  the  possession  of  land  a  summary  rem- 
edy to  recover  the  same  as  against  a  mere  tresspasser  or  intruder.  In  such 
action  the  defendant  may  show  the  character  of  the  plaintiff's  possession  on 
which  a  recovery  is  sought,  also  the  character  of  his  own  right  to  the  prem- 
ises in  controversy.  While  the  language  of  the  statute  gives  the  right  of 
action  for  a  wrongful  entry  upon  another's  actual  possession,  it  must  not  be 
construed  to  mean  a  possession  obtained  by  force,  and  so  held  against  the 
rightful  claimaint,  nor  is  a  mere  "scrambling"  possession  as  against  him 
sufficient  to  maintain  the  action.  Murry  v.  Burris  et  al,  6  Dak.  170,  42  N. 
W.  25;  3  Bl.  Comm.  5;  Taylor  v.  Cole,  3  Term  R.  296;  Cooley  on  Torts,  57, 
58;  McDaougall  v.  Sitcher,  1  Johns.  42;  Hyatt  v.  Wood,  4  Id.  157;  Jackson 
vs.  Farmer,  9  Wend.  201;  Wood  v.  Phillips,  43  N.  Y.  152;  Bliss  v.  Johnson, 
73  Id.  529;  Com.  v.  Dudley,  10  Mass.  409;  4  Kent's  Com.  118;  Bowers  v. 
Cherokee  Bob,  45  Cal.  495;  Brooks  v.  Warren  (Utah),  13  Pac.  175.  In  an 
action  in  a  justice's  court  the  defendant  interposed  an  answer  raising  an  is- 
sue of  title  and  offered  proof  under  it.  Sections  10,  37,  Justices'  Code,  pro- 
vide that  when  the  title  or  boundaries  of  real  property  in  any  wise  come  in 
question  the  case  shall  be  certified  to  the  district  court.  Held,  upon  the 
oflfer  of  proof  the  jurisdiction  of  the  justice  ceased  and  the  judgment  after- 
ward rendered  was  void.     Murry  v.  Burris  et  al,  6  Dak.  170,  42  N.  W.  25. 

Appeal — Effect  of,  Same  as  Certifying  Up.  That  appealing  in  such 
a  case  is  in  effect  certifying  the  case  to  the  district  court,  as  applied  to  the 
latter's  jurisdiction — doubted.  Murry  v.  Burris  et  al,  6  Dak.  170,  42  N. 
W.  25. 

[Author's  Note.  The  two  following  sections  are  taken  from  art. 
16,  Justices'  Code.] 

SICKNESS  OF  JUSTICE— ANOTHER  JUSTICE  ATTENDS— PRO- 
CEDURE. §  6140  Comp.  Laws.  In  case  of  the  sickness  or  other 
disability,  or  necessary  absence  of  a  justice,  on  a  return  of  a 
summons,  or  at  the  time  appointed  for  atrial,  another  j  ustice 
of  the  same  township  or  county,  may,  at  his  request,  attend  in 
his  behalf,  and  thereupon  is  vested  with  the  power,  for  the 
time  being,  of  the  justice  before  whom  the  summons  was  re- 
turnable. In  Ihat  case  the  proper  entry  of  the  proceedings 
before  the  attending  justice,  subscribed  by  him,  must  be  made 
in  the  docket  of  the  justice  before  whom  the  summons  was  re- 
20-T  P 


JUSTICE'S  CODE— SOUTH  DAKOTA. 


turnable.  If  the  case  is  adjourned,  the  justice  before  whom 
the  summons  was  returnable,  may  resume  jurisdiction. 

Sec.  100,  Justice  C;  Levisee,  p.  308. 

Consult  sees.  6084,  6077,  supra;  sec.  6647,  Rev.  Codes,  N.  D.,  chap. 
21,  Post. 

LIMITED  JURISDICTION  OF  JUSTICE'S  COURTS— CODE  CIVIL 
PROCEDURE,  HOW  FAR  APPLICABLE  §  6144  Comp.  Laws.  Jus- 
tices' courts  being  courts  of  peculiar  and  limited  jurisdiction, 
only  those  provisions  of  the  code  of  civil  procedure  which  are 
in  their  nature  applicable  to  the  organization,  powers,  and 
course  of  proceedings  in  justice's  courts  or  which  have  been 
made  applicable  by  special  provisions  in  this  chapter,  are  ap- 
plicable to  justices'  courts  and  the  proceedings  therein. 

Sec.  103,  Jus.  Code;   Levisee,  p.  308. 

Consult  decisions  under  sec.  6085,  supra. 

[Author's  note.  The  following  sections  are  taken  from  art.  2,  chap. 
1,  Justices'  Code,  being  sections  5  to  9  of  that  code.] 

PLACE  OF  TRIAL— CHANGE  OF— ON  WHAT  GROUNDS.  § 
6045  Comp.  Laws.  The  court  may  at  any  time  before  the  trial, 
on  motion,  change  the  place  of  trial  in  the  following  cases: 

1 .  Where  it  appears  to  the  satisfaction  of  the  justice  be- 
fore whom  the  action  is  pending,  by  affidavit  of  either  party, 
that  such  justice  is  a  material  witness  for  either  party. 

2.  Where  either  party  makes  and  files  an  affidavit,  that 
he  believes  he  cannot  have  a  fair  and  impartial  trial,  before 
such  justice,  by  reason  of  the  interest,  prejudice,  or  bias  of  the 
justice. 

3.  When  from  any  cause  the  justice  is  disqualified  from 
acting. 

4.  When  the  justice  is  sick  or  unable  to  act.  (Sec,  5, 
Jus.  C.) 

Levisee,  p.  288.  See  as  to  change  of  venue  in  circuit  court,  sec.  95,  C. 
C.  P.,  Levisee,  p.  23,  sees.  48-91,  Comp.  Laws;  sec.  6652,  Rev.  Codes,  N.  D,, 
chap.  21,  Post. 

ONLY  ONE  CHANGE  ALLOWED— TRANSFER  OF  ACTION  ON,  TO 
WHAT  JUSTICE.  §  6046  Comp.  Laws.  The  place  of  trial  can- 
not be  changed  on  motion  of  the  same  party  more  than  once. 


I^RIALS.  807 

When  the  court  orders  the  place  of  trial  to  be  changed,  the 
action  must  be  transferred  for  trial  to  a  justice's  court  the  par- 
ties may  agree  upon;  and  if  they  do  not  so  agree,  then  to  the 
next  nearest  justice's  court  in  the  same  county.  (Sec.  6,  Jus. 
C. ;  sec.  1,  chap.  88,  Laws  1881.) 

Levisee,  p.  289;  sec.  6653,  Rev.  Codes,  N.  D.,  chap.  21,  Post. 

PROCEEDINGS  AFTER  CHANGE  OF  i/ENUE— TRANSCRIPT— NO- 
TICE OF  TRIAL.  §  6047  Comp.  Laws.  After  an  order  has  been 
made  transferring  the  action  for  trial  to  another  court  the  fol- 
lowing proceedings  must  be  had: 

1.  The  justice  ordering  the  transfer  must  immediately 
transmit  to  the  justice  of  the  court  to  which  it  is  transferred, 
on  payment  by  tjie  party  applying  of  one  dollar  for  the  trans- 
cript, all  the  papers  in  the  action,  together  with  a  certified 
transcript  from  his  docket  of  the  proceedings  therein. 

2.  Upon  the  receipt  by  him  of  such  papers  the  justice  of 
the  court  to  which  the  case  is  transferred  must  issue  a 
notice  stating  when  and  where  the  trial  will  take  place,  which 
notice  must  be  served  upon  the  parties  at  least  one  day  before 
the  time  fixed  for  trial,  unless  such  notice  be  waived  by  consent 
of  parties  and  such  consent  be  entered  on  the  docket  of  the  jus- 
tice.    (Sec.  1,  chap.  42,  laws  1879.) 

Sec.  8,  Jus.  C;  Levisee,  p.  289;  sec.   6654,  Rev.   Codes,  chap.  21,  Post. 

JURISDICTION  AFTER  CHANGE  OF  I/ENUE.  §  6048  Comp. 
Laws.  Prom  the  time  the  order  changing  the  place  of  trial 
is  made,  the  court  to  which  the  action  is  thereby  transferred, 
has  the  same  jurisdiction  over  it  as  though  it  had  been  com- 
menced in  such  court.     (Sec.  9,  Jus.  C. ) 

Levisee,  p.  289;  sec.  6654,  Rev.  Codes,  N.  D.,  chap.  21,  Post. 


CHAPTER  XVII. 
Art.  10,  Chap.  1,  Justices'  Code — South  Dakota. 

TRIALS. 

ISSUES— ORIGIN  OF.    §  6089  Comp.  Laws.  Issues  arise  upon 
the  pleadings  when  a  fact  or  conclusion  of  law  is  maintained 


308  justice's  code— south  Dakota. 

by  the  one  party  and  is  controverted  by  the  other.     They  are 
of  two  kinds: 

1.  Of  law;  and, 

2.  Of  fact. 

Sec.  49,  Jus.  C;  Levisee,  p.  298. 

Consult  chap.  1,  ante.  p.  1,  et.  seq;  sec.  6657,  Rev.  Codes,  N.  D.  chap. 
22,  Post. 

ISSUE  OF  LAW.  §  6090  Comp.  Laws.  An  issue  of  law 
arises  upon  a  demurrer  to  the  complaint  or  answer,  or  to  some 
part  thereof. 

Sec.  50,  Jus.  C;  Levisee,  p.  298. 

Consult  sec.  5028,  Comp.  Laws,  p.  2,  ante;  sec.  6658,  Rev.  Codes,  N.  D. 
chap.  22,  Post. 

ISSUE  OF  FACT.  §  6091  Comp.  Laws.  An  issue  of  fact 
arises: 

1.  Upon  a  material  allegation  in  the  complaint,  contro- 
verted by  the  answer;  and, 

2.  Upon  new  matter  in  the  answer,  except  an  issue  of  law 
is  joined  thereon. 

Sec.  51,  Jus.  C;  Levisee,  p.  298. 

Consult  sec.  6089,  supra,  and  sec.  5029,  Comp.  Laws,  p.  2,  ante;  sec. 
6681,  Rev.  Coees,  N.  D.  chap.  22,  Post. 

ISSUE  OF  LAW  TRIED  BY  COURT.  §  6092  Comp.  Laws.  An 
issue  of  law  must  be  tried  by  the  court. 

Sec.  52,  Jus.  Co.;  Levisee,  p.  298. 

Consult  sec.  6090,  Comp.  Lawb,  supra,  and  sec.  5032,  Comp.  Laws,  p.  3, 
ante. 

OF  FACT,  TRIED  BY  JURY— WAIVER,  §  6093  Comp.  Laws. 
An  issue  of  fact  must  be  tried  by  a  jury,  unless  a  jury  is 
waived,  in  which  case  it  must  be  tried  by  the  court. 

Sec.  53,  Jus.  C;  Levisee,  p.  298. 

Consult  sec.  6091,  supra,  and  next  section;  also  sec.  5032,  Comp.  Laws, 
p.  3,  ante. 

WAIVER  OF  JURY—HOW  EFFECTED.  §  6094  Comp.  Laws.  A 
jury  may  be  waived: 

1.  By  consent  of  parties,  entered  in  the  docket. 

2.  By  a  failure  of  either  party  to  demand  a  jury  before 
the  commencement  of  the  trial  of  an  issue  of  fact. 


TRIALS.  M 

3.     By  the  failure  of  either  party  to  appear  at   the   time 
fixed  for  the  trial  of  an  issue  of  fact. 
Sec.  54,  Jus.  C;  Levisee,  p.  298. 

Consult  preceding  section;  also,  sec.  54-20,  Comp.  Laws,  p.  3,  ante;  sec. 
5449,  Comp.  Laws;  sec.  6684,  Rev.  Codes,  N.  D.  chap.  22,  Post. 

FAILURE  TO  APPEAR— TRIAL  PROCEEDS.  §  6095  Comp  Laws. 
If  either  party  fails  to  appear  at  the  time  fixed  for  trial,  the 
trial  may  proceed,  at  the  request  of  the  adverse  party. 

Sec.  55,  Jus.  C;  Levisee,  p.  298. 

Consult,  generally,  as  to  trials,  the  following  sections;  also,  sec.  5035, 
Comp.  Laws,  p.  7,  ante;  sec.  6683,  Rev.  Codes,  N.  D.,  chap  22,  Post. 

JURY— WHEN  DEMANDABLE— PROCEDURE— JURY  FEE— VE- 
NIRE. §  6096  Comp.  Laws.  When  the  value  in  controversy 
or  sum  demanded  exceeds  twenty  dollars,  either  party  may  de- 
mand a  jury,  and*upon  such  demand  the  justice  shall  write  down 
the  names  of  twelve  persons,  residents  of  the  county,  and  hav- 
ing the  qualifications  of  jurors  in  the  circuit  court,  from  which 
list  of  names  each  party,  the  plaintiff  beginning,  may  strike 
out  three  names  alternately,  and  in  case  of  the  absence  of 
either  party,  or  of  his  refusal  to  strike  out,  the  justice  shall 
strike  out  of  such  list  such  names,  and  the  justice  shall  upon 
the  deposit  of  the  jury  fee  for  one  day's  service,  by  the  party 
demanding  the  jury,  at  once  issue  his  venire  directed  to  the 
sheriff  or  any  constable  of  the  county,  commanding  him  to  sum- 
mon the  six  persons  whose  names  remain  upon  the  list  as  jury- 
men. (Sec,  1,  chap.  33,  Laws  1879,  Dak.,  am'd  sec.  1,  chap. 
51,  Laws  1891,  S.  D.) 

Sec.  56,  Jus.  C;  Levisee,  p.  298-9. 

Consult  sec.  6094,  supra;  also  sec.  5032,  Comp.  Laws,  pp.  3  and  4,  ante, 
and  the  decisions  cited  thereunder,  and  the  constitutional  provisions  as  to 
the  right  to  jury  trial,  and  as  to  decisions  by  three-fourths  of  the  jury;  and 
see  sec.  6685,  6686,  6687,  Rev.  Codes,  N.  D.  chap.  22,  Post. 

Jurors — Parties  May  Consent  to  Less  Number.  While  the  legisla- 
ture cannot  compel  a  litigant  to  accept  less  than  a  constitutional  jury,  the 
parties  themselves  in  a  civil  action  may  voluntarily  consent  to  a  jury  of  any 
number.  City  of  Huron  v.  Carter,  5  S.  D.  4,  57  N.  W.  947;  "Vaughn  v. 
Coade,  30  Mo.  600;  Millett  v.  Hayford,  1  Wis.  401;  Gillespie  v.  Benson,  18 
Cal.  410;  Cravins  v.  Grant,  4  T.  B.  Mon.  126;  Roach  v.  Blakey  (Va. ),  17  S. 
E.  228. 


816      '  justice's  code— south  Dakota. 

CHALLENGES  AS  IN  CIRCUIT  COURT— JUSTICE  TRIES— TALES- 
MEN. §  6097  Comp.  Laws.  Challenges  shall  be  allowed  in 
the  same  manner,  and  for  the  same  causes,  as  in  the  circuit 
courts  in  civil  actions;  and  in  case  the  number  shall  be  reduced 
below  six,  by  such  challenges,  or  in  case  any  jurors  summoned 
shall  fail  to  attend,  the  justice  shall  direct  the  sheriff  or  any 
constable  to  summon  and  return  forthwith  a  sufficient  number 
of  talesmen,  having  the  qualifications  of  jurors,  to  com- 
plete the  panel.  All  challenges  must  be  tried  in  a  summary 
manner  by  the  justice,  who  may  examine  the  juror  challenged, 
or  other  witnesses,  under  oath.  (Sec.  57,  Jus.  C,  am'd  sec.  2, 
chap.  51,  Laws  1891,  S.  D. ) 

Sec.  57,  Jus.  C;  Levisee,  p.  299. 

Consult  preceding  section;  also,  as  to  manner  of  (j|hallenging,  etc.,  jur- 
ors in  circuit  court,  see  sees.  5039,  5040,  Comp.  Laws,  pp.  9  to  12,  ante;  sees. 
6689,  6691,  Rev.  Codes,  N.  D.,  chap.  22,  Post. 

[Author's  Note— Sec.  6098,  Comp.  Laws,  being  sec.  58,  Justice's 
Code,  S.  D.,  was  repealed  by  sec.  3,  chap.  51,  Laws  1891,  S.  D.J 

JUROR'S  OATH.  §  6099  Comp.  Laws.  The  justice  shall 
administer  to  the  jurors  the  same  oath  as  is  prescribed  for  jur- 
ors in  civil  actions  in  the  circuit  court. 

Sec.  69,  Jus.  C;  Levisee,  p.  299. 

Consult  as  to  oath  of  jurors  in  civil  actions  in  circuit  court  sec.  5046, 
Comp.  Laws,  p.  12,  ayite;  sec.  6692,  Rev.   Codes,  N.  D.  chap.  22,  Post. 

EXHIBITION  OF  ACCOUNT  OR  INSTRUMENT— COURT  ORDERS— 
EVIDENCE.  §  6100  Comp.  Laws.  When  the  cause  of  action  or 
counterclaim  arises  upon  an  account  or  instrument  for  the  pay- 
ment of  money  only,  the  court,  at  any  time  before  the  trial, 
may,  by  an  order  under  his  hand,  require  the  original  to  be  ex- 
hibited to  the  inspection  of,  and  a  copy  to  be  furnished  to  the 
adverse  party,  at  such  time  as  may  be  fixed  in  the  order;  or,  if 
such  order  is  not  obeyed,  the  account  or  instrument  cannot  be 
given  in  evidence. 

Sec.  60,  Jus.  C;  Levisee.  p.  299, 

Consult  next  section;  also  sec.  5251,  Comp.  Laws;  sec.  437,  C.  C.  P,; 
Levisee,  p,  128. 

GENUINENESS  OF  SIGNATURES  DEEMED  ADMITTED,  WHEN— 
COPY.     §  6101  Comp.  Laws,     If  the  plaintiff  annex  to  his  com^ 


APPEALS.  311 

plaint,  or  file  with  the  justice  at  the  time  of  issuing  the  sum- 
mons, the  original  or  a  copy  of  the  promissory  note,  bill  of  ex- 
change, or  other  written  obligation  for  the  payment  of  money, 
upon  which  the  action  is  brought,  the  defendant  is  deemed  to 
admit  the  genuineness  of  the  signatures  of  the  makers,  indors- 
ers  or  assignors  thereof,  unless  he  specifically  deny  the  same 
in  his  answer,  and  verify  the  answer  by  his  oath. 

Sec.  61,  Jus.  C;  Levisee,  p.  299. 

Consult  sec.  5250,  Comp.  Laws,  sec.  436,  C.  C.  P.;   Levisee,  p.  127. 

[Author's  Note.  The  following  section  is  taken  from  art.  7,  Jus- 
tices' Code,  being  sec.  39,  Jus.  C,  as  amended  by  sec.  1,  chap.  87,  Laws  1881, 
Dak.,  and  is  inserted  here  as  bearing  upon  the  general  subject  treated  of  in 
this  chapter.] 

FORCIBLE  ENTRY  AND  DETAINER— FORM  OF  JUDGMENT  IN. 
§  6078  Comp.  Laws.  If  the  finding  of  the  court  or  the  verdict  of 
a  jury  be  in  favor  of  the  plaintiff,  the  judgment  shall  be  for  the 
delivery  of  the  possession  to  the  plaintiff,  and  for  rents  and 
profits  or  damages,  where  the  same  are  claimed  in  the  com- 
plaint, and  for  costs.     (Sec.  1,  chap.  87,  Laws  1891,  Dak.) 

Sec.  39,  Jus.  C;  Levisee,  p.  296. 

Consult  Murry  v.  Burris  et  al,  6  Dak.  170,  42  N.  W.  25,  cited  under 
sec.  6077,  Comp.  Laws,  in  preceding  chapter. 


CHAPTER  XVIII. 
Art.  15,  Chap.  1,  Justice's  Code — South  Dakota. 

APPEALS. 

APPEAL  TO  CIRCUIT  COURT— WHO  MAY— HOW  TAKEN— NO- 
TICE STATES  WHAT.  §  6129  Comp.  Laws.  Any  party  dissatis- 
fied with  a  judgment  rendered  in  a  civil  action  in  a  justice's 
court,  may  appeal  therefrom  to  the  circuit  court  of  the  county 
or  subdivision  at  any  time  within  thirty  days  after  the  rendi- 
tion of  the  judgment.  The  appeal  is  taken  by  serving  a  copy 
of  the  notice  of  appeal  on  the  adverse  party  or  his  attorney,  and 
by  filing  the  notice'of  appeal  with  the  justice.  The  notice  must 
state  whether  the  appeal  is  taken  from  the  whole  or  a  part  of  the 


812  justice's  code— south  Dakota. 

judgment;  and  if  from  a  part,  what  part,  and  whether  the  ap- 
peal is  taken  on  questions  of  law  or  fact,  or  both.  (Sec.  1, 
chap.  4,  Laws  1881,  Dak. ) 

Sec.  89,  Jus.  C;  Levisee,  p.  305. 

Consult  next  two  sections;  sec.  6771,  Rev.  Codes,  N.  D.,  chap.  23,  Post. 

What  Are  Jurisdictional  Steps.  The  only  requisites  to  taking  an  ap- 
peal from  a  justice's  court  to  the  circuit  court,  that  are  jurisdictional,  are 
the  service  and  the  filing  of  a  notice  of  appeal,  and  the  filing  of  an  under- 
taking on  appeal;  and  when  performed  within  the  time  prescribed  by  stat- 
ute the  appellate  court  has  jurisdiction  of  the  case.  Edminster  v,  Rathbun, 
3  S.  D.  129,  52  N.  W.  263;  Rudolph  v.  Herman,  2  S.  D.  399,  60  N.  W.  833; 
and  the  payment  of  the  justice's  fee  for  making  his  return  does  not  consti- 
tute one  of  the  acts  necessary  to  perfect  appeal.  Edminster  v.  Rathbun, 
supra.  Necessary  to  Effectual  Appeal.  To  make  an  appeal  from  a  justice 
effectual,  a  notice  of  appeal  must  be  served  on  the  adverse  party,  and  filed, 
together  with  an  undertaking  for  costs,  with  the  justice,  and  all  these  acts 
must  be  done  within  the  statutory  period  for  appeal.  Kellam,  P.  J.,  dis- 
senting. Rudolph  V.  Herman,  2  S.  D.  399,  50  N.  W.  833.  Stay  in  Forcible 
Entry— Not  EquivsClent  to  Security  for  Costs.  An  undertaking  to  stay 
proceedings  in  forcible  entry  and  detainer,  and  allowing  defendant  to  re- 
tain possession  of  the  property  during  pendency  of  appeal,  is  not  such  an 
undertaking  as  is  required  of  appellant  as  security  for  costs  on  appeal.  Ru- 
dolph V.  Herman,  2  S.  D.  399,  50  N.  W.  833.  Amendment  of  Undertaking 
— Not  After  Dismissal  of  Appeal — Prayer  for  Relief— Adjudication. 
Where  judgment  has  been  entered  dismissing  appeal  from  justice  court  for 
want  of  proper  undertaking,  it  is  not  error  to  refuse  an  application  to  amend 
such  undertaking  or  substitute  a  better  one,  so  long  as  such  judgment  of 
dismissal  remains  in  force.  Rudolph  v.  Herman,  4  S.  D.  430,  57  N.  W.  65; 
Greeley  v.  Winsor,  2  S.  D.  361,  50  N.  W.  630.  In  such  case,  where  the  only 
question  presented  was  as  to  the  allowance  of  such  amended  or  substituted 
undertaking,  it  was  not  error  to  refuse  to  allow  the  same;  aJ  though  the  motion 
contained  a  prayer  for  general  relief,  under  which  the  court  might  have  va- 
cated the  judgment  of  dismissal  had  it  been  asked  to  do  so.  Rudolph  v.  Her- 
man, supra;  and  until  the  vacation  of  the  judgment  was  asked  for,  the 
court  was  not  required  to  vacate  it,  and  until  vacated  it  was  res  judicata, 
and  a  bar  to  the  application  to  amend  undertaking.  Id.  Statute  Construed 
— Appeal  on  Law — No  Demand  for  New  Trial.  In  Karr  v.  Chi.  &  N.  W. 
Ry.  Co.,  6  Dak.  14,  50  N.  W.  125,  this  section  and  section  91,  justice's  code, 
as  amended  in  1879,  are  construed,  and  it  is  held^  that  whore  the  notice  of 
appeal  stated  that  the  appeal  was  on  both  questions  of  law  and  fact,  it  was 
error  to  dismiss  the  appeal  merely  because  no  demand  for  new  trial  was 
made;  that  the  questions  of  law  apparent  of  record  and  raised  by  the  appeal 
should    have   been  determined.     Order    Appealable  to    Supreme  Court, 


APPEALS.  313 

When — Final  Judgment— Costs.  A  decision  of  the  circuit  court  dismissing 
an  appeal  from  a  justice's  court  because  the  judgment  was  not  appealable, 
and  awarding  costs  against  appellant,  is,  so  far  as  that  case  is  concerned,  a 
final  determination  of  the  rights  of  the  parties,  and  that  an  appeal  there- 
from to  the  supreme  court  may  be  taken  after  expiration  of  the  sixty  days 
within  which  appeals  from  orders  are  to  be  taken.  Mouser  et  al  v.  Palmer, 
2  S.  D.  466,  50  N.  W.  967;  Zoller  v.  McDonald,  23  Cal.  136;  Bowie  v.  Kan- 
sas City,  51  Mo.  459;  Black,  Judgm.  sec.  27. 

Transcript — It  Alone  Shows  Status  Of  Case — AflB.davits — Amend- 
ing Docket.  In  appeals  from  justice's  court  judgments  the  appellate  court 
must  learn  the  stattis  of  the  case  from  the  transcript  and  papers  sent  up  by 
the  justice,  which  if  imperfect  or  insufficient,  occasions  a  further  return, 
required  by  appellate  court,  but  affidavits  of  parties  cannot  be  used  to  sup- 
ply what  should  but  does  not  appear  in  the  transcript.  Mouser  et  al  v.  Pal- 
mer, 2  S.  D.  466,  50  N.  W.  967;  Plymat  v.  Brush  (Minn.),  48  N.  W.  443; 
Bonds  V.  Hickman,  29  Cal.  461.  In  such  case,  it  seems  the  appellate  court 
may  direct  the  docket  to  be  amended,  but  the  certified  copy  of  the  docket 
cannot  be  attacked  collaterally,  and  its  correctness  determined  upon  ex  parte 
affidavits.  Justice's  transcript  in  this  case  examined,  and  held,  not  to  show 
a  judgment  by  default,  and  that  to  dismiss  the  appeal  on  that  ground  was 
error.  Mouser  et  al.  v.  Palmer,  2  S.  D.  466,  50  N.  W.  967;  Norton  v.  Porter, 
63  Mo.  345.  Record  Showing  Perfected  Appeal — Notice  and  TJndertak- . 
ing.  When  strict  compliance  with  all  jurisdictional  statutory  require- 
ments relating  to  taking  and  perfecting  appeal  to  the  circuit  court  from  a  jus- 
tice of  the  peace  appears  of  record,  the  mere  fact  that  the  certified  copy  of 
the  justice's  docket  transmitted  fails  to  show  receipt  of  notice  of  appeal  and 
filing  of  undertaking,  is  not  sufficient  to  divest  the  circuit  court  of  jurisdic- 
tion to  hear  and  determiue  the  case  on  appeal.  Warder,  Bushnell  »&  Gless- 
ner  Co.  v.  Raymond,  . . .  .S.  D ,  64  N.  W.  525. 

Certiorari — Where  Remedy  at  Law  AfForded,Will  Not  Lie.  Where  the 
law  affords  a  plain,  speedy  and  adequate  remedy,  certiorari  will  not  lie.  Per- 
rott  V.  Owen,  J.  P., S.  D ,  64  N.  W.  526.  Appeals  from  inferior  tri- 
bunals are  in  law  regarded  with  favor;  and  the  statute  makes  no  distinction, 
as  to  the  right  of  appeal,  between  parties  who  have  suffered  judgment  by 
default  in  justice  court  and  those  who  have  appeared  in  the  action.  Perrott 
V.  Owen,  J.  P.,  supra;  Hal  lock  v.  Jaudin,  34  Cal.  172;  Rickey  v.  Supei-ior 
Court,  59  Cal.  661;  Burnham  v.  Turner,  14  Wis.  622;  State  v.  Goodrich,  15 
Wis.  445;  Lauferty  v.  Prickett,  50  Ind.  24;  Butler  v.  Heeb,  38  la.  429;  Rail- 
way Co.  v.  Forbes,  37  Kan.  445,  15  Pac.  595;  Pearson  v.  Carson,  69  Mo. 
569;  12  Am.  &  Eng.  Ency.  Law,  p.  483  and  cases  cited. 

Jurisdiction  to  Amend  Appeal    Bond — When  Circuit  Court  Loses. 
When  an  appeal  from  justice's  court  has  been  dismissed  by  circuit  court, 
20i— T  P 


314  justice's  code— south  Dakota. 

and  the  order  dismissing  such  appeal  affirmed  by  supreme  court,  the  circuit 
court's  jurisdiction  over  the  case  ends,  and  a  motion  made  to  that  court  af- 
ter decision  of  the  supreme  court,  by  appellant  for  leave  to  file  new  or 
amended  appeal  bond,  in  order  to  perfect  his  appeal  from  justice's  court,  is 
properly  denied,  Rudolph  v.  Herman,  4  S.  D.  203,  56  N.  W.  122;  Towle  v. 
Bradley,  2  S.  D.  472,  50  N.  W.  1057;  Howard  v.  Harman,  5  Cal.  78.  Juris- 
diction on  Appeal — Judgment  on  Demurrer  Below.  Under  justices' 
code,  sec.  89,  providing  that  "any  person  dissatisfied  with  a  judgment  ren- 
dered in  a  civil  action  in  a  justice's  court  may  appeal  therefrom.  *  *  *  * 
The  notice  must  state  whether  the  appeal  *  *  *  is  taken  on  questions 
of  law  or  fact,  or  both;"  and  sec.  91,  providing  that  when  the  appeal  is  tak- 
en on  questions  of  both  law  and  fact,  and  new  trial  demanded  in  district 
court,  the  action  must  be  tried  anew  in  that  court, — an  appeal  must  be  en- 
tertained by  the  district  court,  and  a  trial  granted  there,  where  the  notice 
stated  that  the  appeal  was  on  questions  of  law  and  fact,  and  demanded  new 
trial  in  district  court,  though  the  justice  merely  sustained  a  demurrer  to 
the  counterclaims,  and  entered  judgment  for  amount  demanded  in  com- 
plaint.    Purcell  V.  Booth,  6  Dak.  17,  50  N.  W.  196. 

ON  QUESTIONS  OF  LAW  ALONE— REVIEW  ON  EVIDENCE— STATE- 
MENT OF  CASE,  PROCEDURE  IN  SETTLEMENT  OF  §  6130  Comp. 
Laws,  When  a  party  appeals  to  the  circuit  court  on  questions 
of  law  alone,  or  desiring  a  review  therein,  upon  the  evidence 
appearing  on  the  trial  below,  either  of  questions  of  fact  or  law, 
he  must,  within  ten  days  from  the  rendition  of  judgment,  pre- 
pare a  statement  of  the  case  and  file  the  same  with  the  justice. 
The  statement  must  contain  the  grounds  upon  which  the  party 
intends  to  rely  on  the  appeal,  and  so  much  of  the  evidence  as 
may  be  necessary  to  explain  the  grounds,  and  no  more.  Within 
ten  days  after  he  receives  notice  that  the  statement  is  tiled,  the 
adverse  party,  if  dissatisfied  with  the  same,  may  file  amend- 
ments. The  proposed  statement  and  amendments  mujt  be  set- 
tled by  the  justice,  and  if  no  amendments  be  filed  the  original 
statement  stands  as  adopted.  The  statement  thus  adopted  or 
as  settled  by  the  justice,  with  a  copy  of  the  docket  of  the  jus- 
tice, and  all  motions  filed  with  him  by  the  parties  during  the 
trial  and  the  notice  of  appeal,  may  be  used  on  the  hearing  of 
the  appeal  before  the  circuit  court.  (Sec.  1,  chap.  31,  Laws 
1879,  Dak. ) 

Sec.  90,  Jus.  C. ;  Levisee,  p.  305. 


APPEALS.  315 

Consult  preceding,  and  following  section;  also,  see  Perrott  v.  Owen,  J. 
P.,  ....  S.  D ,  64  N.  W.  526,  cited  under  preceding  section. 

APPEAL  FOR  NEW  TRIAL— NO  STATEMENT— TRIAL  DE  NOVO. 
§  6131  Comp.  Laws.  When  a  party  appeals  to  the  circuit  court 
on  questions  of  fact,  or  on  questions  of  both  law  and  fact,  and 
demands  in  his  notice  of  appeal  a  new  trial  in  the  circuit  court, 
no  statement  must  be  made,  but  the  action  must  be  tried  anew 
in  that  court.     (Sec.  2,  chap.  31,  Laws  1879,  Dak.) 

Sec.  91,  Jus.  C;  Levisee,  p.  305;  and  see  Karr  v.  Chi.  &  N.  W.  RyCo. , 
6  Dak.  14,  50  N.  W.  125,  and  Mouser  et  al  v.  Palmer,  2  S.  D.  466,  50  N.  W. 
967;  also  Purcell  v.  Booth,  6  Dak.  17,  50  N.  W.  196,  all  cited  under  sec.  6129, 
supra. 

New  Trial  Demanded — Goes  on  Calendar — Dismissal — Notice  of 
Motion.  When  an  appeal  is  taken  to  the  district  court  from  a  judgment  in 
justice  court,  and  the  notice  of  appeal  demands  a  new  trial,  the  case  goes 
upon  the  trial  calendar  of  the  district  court,  "to  be  tried  anew,''  and  all  the 
provisions  of  the  Code  of  Civil  Procedure  are  applicable  thereto.  The  ap- 
peal is  subject  to  be  dismissed  for  failure  to  prosecute,  or  unnecessary  delay 
in  bringing  it  to  a  hearing,  but  a  motion  for  such  purpose  can  only  be  made 
or  heard  after  notice  to  appellant.  Myers  v.  Mitchell,  1  S.  D.  249,  46  N.  W. 
245.  When  the  case  is  reached  upon  the  calendar,  and  called  for  trial,  if 
either  party  fail  to  appear,  the  adverse  party  may  proceed  with  his  case, 
take  a  dismissal  of  the  complaint,  a  verdict  or  judgment,  as  the  case  may 
require,  (sec.  5035,  Comp.  Laws)  but  he  cannot  under  that  section  (sec.  6136, 
Comp.  Laws)  take  a  dismissal  of  the  appeal.  Myers  v.  Mitchell,  1  S.  D.  249, 
46  N.  W.  245. 

When  Respondent  Cannot  Deny  Jurisdiction  of  Person.  After  an 
appeal  upon  questions  of  law  and  fact  by  a  defendant  from  a  justice's  judg- 
ment to  the  district  court,  a  new  trial  being  demanded  in  the  appeal  notice, 
defendant  cannot  deny  the  jurisdiction  of  the  district  court  over  his  person, 
although  the  justice  rendering  the  judgment  never  acquired  jurisdiction 
over  his  person.  Whether  such  justice  acquired  such  jurisdiction  by  liti- 
gating the  cause  after  motion  to  dismiss  for  want  of  jurisdiction  had  been 
overruled,  not  decided.  Lyons  et  al  v.  Miller,  2  N,  D.  1,  48  N.  W.  514;  Seu- 
rer  v.  Horst  (Minn.),  18  N.  W.  283. 

JUSTICE  TRANSMITS  WHAT  RECORDS  AND  PAPERS,  AND 
WHEN— FINE  FOR  NEGLECT— BENEFIT  OF  OBJECTIONS.  §  6132, 
Comp.  Laws.  Upon  receiving  the  notice  of  appeal,  and  on 
payment  of  one  dollar  for  the  return  of  the  justice,  and  filing 
an  undertaking  as  required  in  the  next  section,  and  after  set- 
tlement or  adoption  of  statement,  if  any,  the  justice  must  with- 


316  justice's  CODE — SOUTH  DAKOTA. 

in  five  days  transmit  to  the  clerk  of  the  circuit,  if  the  appeal  be 
on  questions  of  fact  or  both  law  and  fact,  and  a  new.  trial  in  the 
cii*ciiit  court  be  demanded  in  the  notice  of  appeal,  a  certified 
copy  of  his  docket,  the  pleadings,  all  notices,  motions  and  other 
papers  filed  in  the  cause,  the  notice  of  appeal  and  the  under- 
taking filed;  in  all  other  cases  a  certified  copy  of  his  docket, 
the  statement  as  admitted  or  as  settled,  the  notice  of  appeal 
and  the  undertaking  filed;  and  the  justice  may  be  compelled  by 
the  circuit  court,  by  an  order  entered,  upon  motion,  to  transmit 
such  papers,  and  may  be  fined  for  neglect  or  refusal  to  trans- 
mit the  same.  A  certified  copy  of  such  order  may  be  served 
on  the  justice  by  the  party  or  his  attorney.  In  the  circuit  court 
either  party  may  have  the  benefit  of  all  legal  objections  made 
in  the  justice's  court.     (Sec.  3,  chap.  31,  Laws  1879,  Dak.) 

Sen.  92,  Jus.  C;  Levisee,  pp.  305-6. 

Consult  sees.   6129,  6130,   supra;  also,  Mouser  et  al  v.  Palmer,  2  S.  D. 

466,  50  N.  W.  967,  and  Warder,  Bushnell  &  Glessner  Co.  v.  Raymond,    

S.  D ,  64  N.  W.  525,  cited  under  sec.  6129,  supra. 

Voluntary  Appearance — What  is  Not — Jurisdiction — No  Waiver  by 
Appeal.  After  defendants  appeared  specially,  and  objected  to  the  jurisdic- 
tion of  the  court  on  the  ground  that  the  summons  was  not  sufficient  to  con- 
fer jurisdiction,  and  after  the  court  had  overruled  this  objection,  they  ap- 
peared generally,  and  answered.  Held,  such  appearance  was  not  a  voluntary 
appeai'ance,  and  did  not  waive  defendant's  objection  to  the  jurisdiction  of 
the  court.  Miner  v.  Francis  &  Southard,  3  N.  D.  549,  58  N.  W.  843;  Hark- 
ness  V.  Hyde,  98  U.  S.  476;  Warren  v.  Crane,  50  Mich.  301,  15  N.  W.  465; 
Dewey  v.  Greene,  4  Denio  94;  Walling  v.  Beers,  120  Mass.  548;  Jones  v. 
Jones,  (N.  Y.  App.),  15  N.  E.  707;  Benedict  v.  Johnson,  4  S.  D.  387,  57  N.W. 
66;  Avery  v.  Slack,  17  Wend.  85;  Deidesheimer  v.  Brown,  8  Cal.  339;  Kent 
V.  West,  50  Cal.  185.  Nor  was  such  objection  waived,  or  any  jurisdiction 
over  defendants  conferred  by  their  appeal  to  the  district  court,  and  subse- 
sequently  to  this  court,  for  the  sole  purpose  of  reviewing  the  question  of 
sufficiency  of  such  summons.  Miner  v.  Francis  &  Southard,  supra;  Craig- 
head v.  Marton,  25  Minn.  41;  Shaw  v.  Moser,  3  Mich.  71;  Freer  v.  White, 
(Mich.),  51  N.  W.  807. 

UNDERTAKING  — SAME  FOR  STAY— CONDITIONS  OF- DE- 
POSIT IN  LIEU  OF— EXCEPTIONS  TO  SURETIES— JUSTIFICATION. 
§  6133  Comp.  Laws.  An  appeal  from  a  justice's  court  is  not 
effectual  for  any  purpose,  unless  an  undertaking  be  filed,  with 
two  or  more  sureties,  in  the  sum  of  one  hundred  dollars,  for 


APPEALS.  317 

the  payment  of  the  costs  on  the  appeal;  or,  if  a  stay  of  pro- 
ceedings be  claimed,  in  a  sum  equal  to  twice  the  amount  of  the 
judgment,  including  costs,  when  the  judgment  is  for  the  pay- 
ment of  money;  or  twice  the  value  of  the  property,  including 
costs,  when  the  judgment  is  for  the  recovery  of  specific  per- 
sonal property,  and  must  be  conditioned,  when  the  action  is 
for  the  recovery  of  money,  that  the  appellant  will  pay  the 
amount  of  the  judgment  appealed  from  and  all  costs,  if  the  ap- 
peal be  withdrawn  or  dismissed,  or  the  amount  of  any  judg- 
ment and  all  costs  that  may  be  recovered  against  him  in  the 
action  in  the  circuit  court.  When  the  action  is  for  the  recov- 
ery of  specific  personal  property  the  undertaking  must  be  con- 
ditioned that  the  appellant  will  pay  the  judgment  and  costs 
appealed  from,  and  obey  the  order  of  the  court  made  therein, 
if  the  appeal  be  withdrawn  or  dismissed,  or  any  judgment  and 
costs  that  may  be  recovered  against  him  in  said  action  in  the 
circuit  court,  and  will  obey  any  order  made  by  the  court  there- 
in. A  deposit  of  the  amount  of  the  judgment,  including  all 
costs  appealed  from,  or  of  the  value  of  the  property,  including 
all  costs  in  actions  for  the  recovery  of  specific  personal  prop- 
erty, with  the  justice,  is  equivalent  to  the  filing  of  the  under- 
taking, and  in  such  cases  the  justice  must  transmit  the  money 
to  the  clerk  of  the  circuit  court,  to  be  by  him  paid  out  on  the 
order  of  the  court.  The  adverse  party  may  except  to  the  sufli- 
ciency  of  the  sureties  within  five  days  after  the  filing  of  the 
undertaking,  and  unless  they  or  other  sureties  justify  before 
the  justice  before  whom  the  appeal  is  taken,  within  five  days 
thereafter,  upon  notice  to  the  adverse  party,  to  the  amounts 
stated  in  their  affidavits,  the  appeal  must  be  regarded  as  if  no 
such  undertaking  had  been  given. 

Sec.  93,  Jus.  C;  Levisee,  p.  306. 

Consult  sec.  6129,  supra,  and  next  two  sections.  Also,  see  chap.  9,  ante, 
pp.  189,  et  seq.,  on  appeals  to  supreme  court;  also,  sec.  6773,  Rev.  Codes,  N. 
D.,  chap.  23,  Post. 

Rudolph  V.  Herman,  2  S.  D.  399,  50  N.  W.  833;  Rudolph  v.  Herman,  4 
S.  D.  430,  57  N.  W.  65;  Rudolph  v.  Herman,  4  S.  D.  203,  56  N.  W.  122,  all 
cited  under  sec.  6129,  supra. 

Erroneous  Dismissal  of  Appeal — Omission  in  Undertaking.  Where 
the  district  court  dismissed  an  appeal  from  justice's  court,   on  the  ground 


318  justice's  code — south  dakota. 

that  in  the  appeal  undertaking  (the  action  being  for  the  recovery  of  per- 
sonal prop)erty)  omitted  the  words  "and  will  obey  any  order  made  by  the 
court  therein,"  held,  error.  Kehl  v.  Schaller,  6  Dak  499,  50  N.  W.  195. 
After  due  notice  of  appeal  was  given,  and  appeal  bond  filed,  the  sureties 
justifying  in  the  form  attached  to  the  bond,  the  justice's  certificate  approv- 
ing the  bond,  plaintiflf  gave  notice  requiring  sureties  to  justify,  but  no 
further  justification  was  had,  and  on  motion  the  appeal  was  dismissed  by  the 
district  court.  Held,  error,  and  that  the  district  court  had  jurisdiction  on 
the  appeal.  Judson  v.  Bulin,  6  Dak.  70,  50  N.  W.  484.  Expunging  Word 
From  Bond — When  Improper.  Where  the  district  tourt  denied  a  motion 
to  vacate  an  order  purporting  to  dismiss  an  appeal  from  justice  court,  which 
order  denying  said  motion  was  sought  to  be  reviewed  as  a  chambers  order, 
by  motion  to  set  it  aside,  and  where  an  appeal  was  taken  to  the  supreme 
court  from  an  order  refusing  to  vacate  the  order  denying  the  motion  to  dis- 
miss the  appeal  from  justice  court,  lield,  in  a  suit  upon  the  Undertaking  giv- 
en on  the  last  mentioned  appeal,  that  the  word  "judgment"  could  not  be  ex- 
punged from  the  undertaking,  and  the  word  "order"  inserted  in  its  place  as 
a  clerical  error,  no  attempt  being  made  to  reform  the  undertaking  on 
ground  of  mistake.  Bartholomew,  C.  J.,  dissenting.  Travelers'  Ins.  Co.  v. 
Weber  et  al,  4  N.  D.  135,  59  N.  W.  529. 

Sureties  Must  Justify  in  Time  -^Dismissal  of  Appeal.  If  under 
this  section  the  sufficiency  of  the  sureties  in  the  undertaking  is  excepted  to, 
and  they  or  other  sureties  do  not  justify  as  required  in  said  section,  the  ap- 
peal should  be  dismissed.  Barber  v.  Johnson,  4  S.  D.  528,  57  N.  W.  225; 
Rudolph  V.  Herman,  2  S.  D.  399,  50  N.  W.  833;  Coker  v.  Superior  Ct.,  58 
Cal.  177;  McCracken  v.  Suj^erior  Ct.,  86  Cal.  74,  24  Pac.  845.  Attorney  as 
Surety — Bond  Void.  Where  one  of  the  sureties  on  appeal  from  a  justice 
court  was  a  practicing  attorney  in  the  courts  of  this  state,  held,  such  un- 
dertaking was  insufficient,  and  the  appellate  court  on  being  properly  ad- 
vised of  the  effect  in  the  undertaking,  could  proceed  no  further  until  a  suffi- 
cient undertaking  was  filed.  Towle  v.  Bradley,  2  S.  D.  472,  SON.  W.  1057: 
Gilbank  v.  Stephenson,  30  Wis.  156;  Cothren  v.  Connaughton,  24  Wis.  137; 
Schuek  v.  Hagar,  24  Minn.  341.  Held,  further,  that  when  the  court,  after 
the  fact  that  one  of  such  sureties  was  such  practicing  attorney  was  clearly 
established,  proceeded  to  try  the  action  and  enter  judgment,  without  a  new 
undertaking  being  filed,  it  committed  reversible  error.  Towle  v.  Brad- 
ley, siqyra. 

POSSESSION  IN  FORCIBLE  ENTRY,  ETC.— UNDERTAKING  FOR 
STAY— CONDITIONS  OF.  §  6134  Comp.  Laws.  In  Judgments  for 
the  delivery  of  possession  in  actions  of  forcible  entry  and  de- 
tainer, or  detainer  only,  the  execution  of  the  same  cannot  be 
stayed  unless  a  written  undertaking  be  executed  on  the  part  of 


APPEALS.  319 

the  appellant,  with  two  or  more  sureties,  to  the  effect  that  dur 
ing  the  possession  of  such  property  by  the  appellant  he  will 
not  commit  or  suffer  to  be  committed  any  waste  thereon,  and 
that  if  the  judgment  be  affirmed,  or  the  appeal  be  dismissed,  he 
will  pay  all  rents  for  the  use  and  occupation  of  the  property, 
and  all  damages  from  the  time  of  the  appeal  until  the  delivery 
of  the  possession  thereof. 

Sec.  94,  Jus.  C. ;  Levisee,  pp.  306  7;  sec.  6774,  Rev.  Codes  N.  D.  chap. 
23,    Fost. 

Consult  preceding-,  and  following  section. 

And  see,  Rudolph  v.  Herman,  2  S.  D.  399,  50  N.  W.  833;  Rudolph  v. 
Herman,  4  S.  D.  430,  57  N.  W.  65;  and  Rudolph  v.  Herman,  4  S.  D.  203, 56 
N.  W.  122,  all  cited  under  sec.  6129,  supra. 

STAY  OF  EXECUTION— RELEASE  OF  LEVY— OFFICER'S  FEES.     § 

6135  Comp.  Laws.  If  an  execution  be  issued,  on  the  filing  of 
the  undertaking  staying  proceedings'  the  justice  must,  by  order, 
direct  the  officer  to  stay  all  proceedings  on  the  same.  Such 
officer  must,  upon  payment  of  his  fees  for  services  rendered  on 
the  execution,  thereupon  relinquish  all  property  levied  upon, 
and  deliver  the  same  to  the  judgment  debtor,  together  with  all 
moneys  collected  from  sales  or  otherwise.  If  his  fees  be  not 
paid,  the  officer  may  retain  so  much  of  the  property  or  pro- 
ceeds thereof  as  may  be  necessary  to  pay  the  same. 

Sec.  95,  Jus.  C;  Levisee,  p.  307. 

Consult  two  preceding  sections;  and  sec.  6778,  Rev.  Codes  N.  D.  chap. 
23,  Post. 

REVIEW  ON  APPEAL  ON  STATEMENT— SOOPE  OF— NEW  TRIAL 
ORDERED,  WHEN— TRIAL  DE  NOVO— DISMISSAL  OF  APPEAL— 
JUDGMENTS— NOTICE  OF  TRIAL  UNNECESSARY.  §  6136  Comp. 
Laws.  Upon  an  appeal  heard  upon  a  statement  of  the  case, 
the  circuit  court  may  review  all  orders  affecting  the  judgment 
appealed  from,  and  may  set  aside,  affirm  or  modify  the  judg- 
ment, or  any  or  all  the  proceedings  subsequent  to  and  depend- 
ent upon  such  judgment,  and  may,  if  necessary  or  proper,  ord- 
er a  new  trial.  When  the  action  is  tried  anew,  upon  appeal, 
the  trial  must  be  conducted  in  all  respects  as  trials  in  the  cir- 
cuit court.  The  provisions  of  the  Code  of  Civil  Procedure  as 
to  changing  the  place  of  trial,  and  all  the  provisions  as  to  trials 


320  justice's  code— south  DAKOTA. 

in  the  circuit  court,  are  applicable  to  trials  on  appeal  in  that 
court.  For  a  failure  to  prosecute  an  appeal,  or  unnecessary 
delay  in  bringing  it  to  a  hearing,  the  circuit  court,  after  notice, 
may  order  the  appeal  to  be  dismissed.  Judgments  rendered  in 
the  circuit  court  on  appeal  have  the  same  force  and  effect  and  may 
be  enforced  in  the  circuit  court  in  the  same  manner,  as  judgments 
in  actions  commenced  therein,  except  that  when  a  new  trial  is 
granted  the  case  must  be  remanded,  and  the  new  trial  shall  be 
had  in  the  justice's  court.  No  notice  of  trial  and  note  of  issue 
shall  be  required  to  be  served  or  tiled  in  order  to  bring  the 
cause  appealed  upon  the  trial  calendar  in  the  circuit  court,  but 
said  appeal  shall  be  filed  by  the  clerk,  on  payment  of  his  costs, 
and  entered  upon  the  calendar,  and  shall  stand  for  trial  as  soon 
as  the  same  is  reached  in  the  regular  call  of  the  calendar  there- 
after. If  not  so  filed  within  fifteen  days  from  the  time  such  ap- 
peal was  perfected,  then  the  same  shall  be  dismissed  by  the 
order  of  the  court  at  any  time  thereafter,  upon  motion  of  the 
appellee,  after  three  days'  notice  to  the  appellant  or  his  at- 
torney. (Sec.  96,  Jus.  C.  am'd  sec.  1,  chap.  5,  laws  1881, 
Dak. ) 

Sec.  96.  Jus.  C;  Levisee,  p.  307. 

Consult  sees.  6131,  6130,  supra.  And  see  Miner  v.  Francis  &  Southard, 
3  N.  D.  549,  58  N,  W.  343,  cited  under  sec.  6132,  supra;  Lyons  et  al  v.  Mil- 
ler, 2  N.  D.  1,  48  N.  W.  514,  Myers  v.  Mitchell,  1  S.  D.  249,  46  N.  W.  245, 
cited  under  sec.  6131,  supra;  Edminster  v.  Rathbun,  3  S.  D.  129,  52  N.  W. 
263,  cited  under  sec.  6129,  supra. 

New  Trial  Demanded — Case  on  Calendar — Must  Notice  for  Dis- 
missal. Upon  appeal  from  judgment  ia  justice  court  to  the  district  (now 
circuit)  court,  the  notice  of  appeal  demanding  a  new  trial,  the  case  goes 
upon  the  calendar  for  trial  as  an  original  action,  subject,  so  far  as  the  trial 
is  concerned,  to  the  provisions  of  the  Code  of  Civil  Procedure;  and  it  is  er- 
ror for  the  trial  court  to  dismiss  the  appeal  for  failure  to  prosecute,  except 
upon  notice,  as  provided  in  sec.  6136,  Comp.  Laws.  Following  Myers  v. 
Mitchell,  1  S.  D.  249,  46  N.  W.  245;  Keehl  v.  Schaller,  1  S.  D.  290,  46  N.  W. 
934.  Order  Non-Appealable  to  Supreme  Court — What  is — Jurisdiction. 
No  appeal  will  lie  from  an  order  of  the  district  court  dismissing  an  appeal 
from  a  justice  court  for  jurisdictional  reasons.  Such  order  is  not  appealable 
under  the  first  subdivision  of  sec.  24,  chap.  120,  laws  1891.  The  order  is  au- 
thority for  the  entry  of  a  judgment;  hence  it  does  not  "prevent  the  entry 
of  a  judgment  from  which  an  appeal  might  be  taken."    In  le  Weber,  4  N. 


OF  CRIMINAL  PROCEEDINGS  IN  JUSTICES'  COURTS.  321 

D.  119,  59  N.  W.  523;  Lamb  v.  McCanna,  14  Minn.  513  (Gil.  385);  Hodgins 
V.  Heaney,  15  Minn.  185  (Gil.  142);  Thorp  v.  Loi-enz  (Minn.),  25  N.  W. 
712. 

Clerk's  Filemark  After  Time — Appeal  Good— Jurisdiction.  Sec.  96, 
Justice's  Code,  as  amended,  cbap.  5,  laws  1881,  provides  that  if  the  appeal  is 
not  filed  with  the  clerk  of  the  district  court  within  fifteen  days  after  it  is 
perfected  it  shall  be  dismissed.  It  appeared  the  clerk  received  the  papers 
within  the  time,  but,  his  costs  not  having  been  paid,  did  not  endorse  them 
with  his  filing  until  after  the  time  had  expired.  Held,  the  district  court  had 
acquired  jurisdiction  and  it  was  error  to  dismiss  the  appeal  under  that  sec- 
tion. Harris  v.  Watkins,  5  Dak.  374,  40  N.  W.  536.  Appearance — Contin- 
uance— Not  Default  Judgment.  In  an  action  before  a  justice,  defendant 
by  attorney,  on  return-day  appeared  and  had  the  case  continued  to  another 
time,  when  he  again  appeared  and  filed  a  general  denial  to  the  complaint, 
but  defendant  himself  failed  to  appear  within  the  hour  and  until  after  judg- 
ment was  rendered  against  him.  Held,  not  a  judgment  by  default,  and  the 
defendant  might  appeal  therefrom  and  have  the  case  tried  in  the  district 
court.     Harris  v.  Watkins,  5  Dak.  374,  40  N.  W.  536. 


CHAPTER    XIX. 


Art.  1,  Chap.  2,  Justices'  Code — South  Dakota. 
of  criminal  proceedings  in  justices'  courts. 

PLEA,  ORAL— COURT  EXAMINES  WITNESSES  ON  PLEA  OF 
GUILTY— COMMITTAL  OF  DEFENDANT  WHEN.  §  6151  Comp.  Laws. 
The  defendant  may  make  the  same  plea  as  upon  an  indictment. 
His  plea  must  be  oral,  and  entered  in  the  minutes.  If  the  de- 
fendant plead  guilty  the  court  may,  before  entering  such  plea  or 
pronouncing  judgment,  examine  witnesses  to  ascertain  the 
gravity  of  the  oifense  committed;  and  if  it  appears  to  the  court 
that  a  higher  offense  has  been  committed  than  the  offense 
charged  in  the  complaint,  the  court  may  order  the  defendant  to 
be  committed  or  admitted  to  bail,  to  answer  any  indictment 
which  may  be  found  against  him  by  the  grand  jury.  (Sec.  110, 
Jus.  C.) 

Levisee,  p.  310. 
21— T  P 


822  JUSTICES'  CODE— SOUTH  DAKOTA. 

Consult  next  section,  sec.  7175,  Comp.  Laws;  sec.  6754,  6755,  Rev.  Codes 
N.  D.,  chap.  24,  Post. 

PLEA  OF  NOT  GUILTY— WHEN  TRIAL  HAD— JURY.  §  6152 
Comp.  Laws.  Upon  a  plea  other  than  a  plea  of  guilty,  if  the 
defendant  does  not  demand  a  trial  by  jury,  or  an  adjournment 
6t  change  of  venue  is  not  granted,  the  court  must  proceed  to 
try  the  case.     (Sec.  Ill,  Jus.  C. ) 

Levisee,  p.  310. 

Consult  preceding  section;  sec.  6756,  Rev,  Codes,  N.  D.,  chap.  24, 
Post. 

CHANGE  OF  VENUE,  WHEN— GROUNDS  FOR— TRANSFER  TO 
WHAT  JUSTICE— ONE  CHANGE.  §  6153  Comp.  Laws.  In  crimi- 
nal proceedings  before  a  justice  of  the  peace,  a  change  of  the 
place  of  trial  or  examination  may  be  had  at  any  time  before 
such  trial  or  examination  commences,  when  it  appears  from  the 
affidavit  of  the  defendant  that  he  has  reason  to  believe  and  does 
believe,  that  he  cannot  have  a  fair  and  impartial  trial  or  exam- 
ination before  the  justice  about  to  try  or  examine  such  case,  by 
reason  of  the  bias  or  prejudice  of  such  justice;  whereupon  the 
cause  shall  be  transferred  to  the  next  nearest  justice  of  the 
same  county,  unless  the  parties  otherwise  agree;  Provided,  that 
a  change  of  the  place  of  trial  or  examination  under  the  provis- 
ions of  this  section  can  be  had  but  once.  (Sec.  1,  ch.  82,  laws 
1887.) 

Sec.  112,  Jus.  C;  Levisee,  p.  310. 

Consult  next  section. 

TRANSMISSION  OF  PAPERS— NEXT  JUSTICE— TRIAL  BEFORE. 
§  6154  Comp.  Laws.  When  a  change  of  the  place  of  trial  is 
ordered  the  justice  must  transmit  to  the  justice  before  whom 
the  trial  is  to  be  had  all  the  original  papers  in  the  cause,  with  a 
certified  copy  of  the  minutes  of  his  proceedings;  and  upon  re- 
ceipt thereof,  the  justice  to  whom  they  are  delivered  must  pro- 
ceed with  the  trial  in  the  same  manner  as  if  the  proceeding  or 
action  had  been  originally  commenced  in  his  court.  (Sec.  113, 
Jus.  C.) 

Levisee,  p.  310. 

Consult  preceding  section. 


OP  CRIMINAL  PROCEEDINGS  IN  JUSTICES'  COURTS.  323 

POSTPONEMENT  BEFORE  TRIAL,  FOR  CAUSE.  §  6155  Comp. 
Laws.  Before  the  commencement  of  the  trial  either  party 
may,  upon  good  cause  shown,  have  a  reasonable  postponement 
thereof.     (Sec.  114,  Jus.  C.) 

Levisee,  p.  310. 

Consult  sec.  6087,  Comp.  Laws,  chap.  16,  ante. 

DEFENDANT  PRESENT  §  6156  Comp.  Laws.  The  defend- 
ant must  be  personally  present  before  the  trial  can  proceed. 
(Sec.  115,  Jus.  C.) 

Levisee,  p.  310;  sec.  6760,  Rev.  Codes,  N.  D.,  chap.  24,  Post. 

JURY  TRIAL— FORMATION  OF  JURY.  §  6157  Comp.  Laws. 
Before  the  court  hears  any  testimony  upon  the  trial,  the  de- 
fendant may  demand  a  trial  by  jury.  The  formation  of  the 
jury  is  provided  for  in  chapter  1,  article  10,  of  this  code.  (Sec. 
116,  Jus.  C.) 

Levisee,  p.  310. 

See,  as  to  formation  of  jury,  chap.  18,  ante. 

Consult  sec.  6757,  Rev.  Codes,  N.  D.,  chap.  24,  Post. 

See,  Belatti  v.  Pierce,  police  justice,     S.  D ,  66  N.  W.  1088, 

where  a  jury  trial  was  denied  defendant  by  the  police  justice,  and  it  was 
held,  that  a  special  charter  of  the  City  of  Watertown,  which  restricted  the 
right  of  appeal  from  a  judgment  of  conviction  for  violation  of  an  ordinance 
to  cases  in  which  the  term  of  imprisonment  imposed  exceeds  10  days,  or  the 
fine  imposed  exceeds  $20,  is  in  violation  of  art.  6,  sec.  6,  of  the  constitution, 
providing  that  the  right  of  trial  by  jury  shall  extend  to  all  cases  at  law 
without  regard  to  amount  in  controversy,  and  of  sec.  7  of  said  article,  pro- 
viding for  a  jury  trial  in  all  criminal  prosecutions.  And  see  City  of  Huron 
v.  Carter,  5  S.  D.  4,  57  N.  W.  947. 

CHALLENGES— COURT  TRIES.  §  6158  Comp.  Laws.  The 
same  challenges  may  be  taken  by  either  party  to  any  individ- 
ual juror,  as  on  the  trial  of  an  indictment  for  a  misdemeanor; 
but  the  challenge  must,  in  all  cases,  be  tried  by  the  court. 
(Sec.  117,  Tus.  C.) 

Levisee,  p.  310.  ^ 

See,  as  to  challenges  on  trial  of  indictment,  sec.  7353,  Comp.  Laws, 
Post;  and  consult  sec.  6758,  Rev.  Codes,  N.  D.,  chap.  24,  Post. 

JUROR'S  OATH.  §  6159  Comp.  Laws.  The  court  must  ad- 
minister to  the  jury  the  following  oath: 


324  JUSTICES*  CODE — SOUTH  DAKOTA. 

You  do  swear  that  you  will  well  and  truly  try  this  issue  between  the 
State  of  South  Dakota  and  A  B,  the  defendant,  and  a  true  verdict  render 
according  to  the  evidence.    So  help  you  God. 

Any  juror  who  is  conscientiously  scrupulous  of  taking  an 
oath,  shall  be  allowed  to  make  affirmation,  substituting  for  the 
words  "so  help  you  God,"  at  the  end  of  the  oath,  the  words, 
"this  you  do  affirm,  under  the  pains  and  penalties  of  perjury." 
(Sec.  118,  Jus.  C.) 

Levisee,  p.  311. 

Consult  sec.  6759,  Rev.  Codes,  N.  D.,  chap.  24,  Post. 

JURORS  SITTING  TOGETHER— PROOFS,  ETC.,  PUBLIC.  § 
6160  Comp.  Laws.  After  the  jury  are  sworn  they  must  sit  to- 
gether and  hear  the  proofs  and  allegations  of  the  parties, 
which  must  be  delivered  in  public  and  in  the  presence  of  the 
defendant.     (Sec.  119,  Jus.  C.) 

Levisee,  p.  311. 

COURT  DECIDES  LAW— NO  CHARGE.  §  9161  Comp.  Laws. 
The  court  must  decide  all  questions  of  law  which  may  arise  in 
the  course  of  the  trial,  but  can  give  no  charge  with  respect  to 
matters  of  fact.     (Sec.  120,  JusC.) 

Levisee,  p.  311. 

JURY'S  CONSULTATION— OFFICER'S  OATH.  §  6162  Comp. 
Laws.  After  hearing  the  proofs  and  allegations,  the  jury  may 
decide  in  court,  or  may  retire  for  consideration.  If  they  do 
not  immediately  agree,  an  officer  must  be  sworn  to  the  follow- 
ing effect: 

You  do  swear  that  you  will  keep  this  jury  together  in  some  quiet  and 
convenient  place;  that  you  will  not  permit  any  person  to  speak  to  them,  nor 
speak  to  them  yourself,  unless  by  order  of  the  court,  or  to  ask  them  wheth- 
er they  have  agreed  upon  a  verdict;  and  that  you  will  return  them  into 
court  when  they  have  so  agreed,  or  when  ordered  by  the  court.  (Sec.  121, 
Jus.  C.) 

Levisee,  p.  311. 

VERDICT,  GENERAL— ENTRY  QF  §  6163  Comp.  Laws.  The 
Yerdict  of  the  jury  must,  in  all  cases,  be  general.  When  the 
jury  have  agreed  on  their  verdict,  they  must  deliver  it  publicly 
to  the  court,  who  must  enter  or  cause  it  to  be  entered  in  the 
docket.     (Sec.  122,  Jus.  C.) 


OF  CRIMINAL  PROCEEDINGS  IN  JUSTICES'  COURTS.  325 

Levisee,  p.  311. 

Consult  next  section;  and  sec.  6761,  Rev.  Codes,  N.   D.,  chap.  24,  Post. 

SEVERAL  DEFENDANTS— VERDICT  AS  TO  PART— RETRIAL  OF 
BALANCE.  §  6164  Comp.  Laws.  When  several  defendants  are 
tried  together,  if  the  jury  cannot  agree  upon  a  verdict  as  to  all, 
they  may  render  a  verdict  as  to  those  in  regard  to  whom  they 
do  agree,  on  which  a  judgment  must  be  entered  accordingly, 
and  the  case  as  to  the  rest  may  be  tried  by  another  jury.  (Sec. 
123,  Jus.  C.) 

Levisee,  p.  311. 

Consult  preceding  section;  and  sec.  6762,  Rev.  Codes,  N.  D.,  chap. 
24,  Post. 

DISCHARGE  OF  JURY— MUST  FIRST  AGREE,  UNLESS.  §  6165 
Comp.  Laws.  The  jury  cannot  be  discharged  after  the  cause 
is  submitted  to  them,  until  they  have  agreed  upon  and  rendered 
their  verdict,  unless  for  good  cause  the  court  sooner  dis- 
charges them.     (Sec.  124,  Jus.  C. ) 

Levisee,  p.  311. 

Consult  next  section. 

TRIAL  AGAIN,  ON  DISAGREEMENT—  PROCEDURE.  §  6166 
Comp.  Laws,  If  the  jury  is  discharged,  as  provided  in  the 
last  section,  the  court  may  proceed  again  to  the  trial,  in  the 
same  manner  as  upon  the  first  trial,  and  so  on  until  a  verdict  is 
rendered.     (Sec.  125,  Jus.  C. ) 

Levisee,  p.  311. 

Consult  preceding  section. 

JUDGMENT,  ON  PLEA  OR  CONVICTION.  §  6167  Com.  Laws. 
When  the  defendant  pleads  guilty,  or  is  convicted,  either  by 
the  court  or  by  a  jury,  the  court  must  render  judgment  there- 
on, of  fine  or  imprisonment,  or  both,  as  the  case  may  be.  (Sec. 
126,  Jus.  C. ) 

Levisee,  p.  311. 

Consult  sec.  6765,  Rev.  Codes,  N.  D.,  chap.  24,  Post. 

Committal  for  Non-Payment  of  Costs — When  Unauthorized.  The 
law  does  not  authorize  a  justice  of  the  peace  to  commit  a  defendant  for  non- 
payment of  costs,  which  are  no  part  of  the  fine  imposed  as  a  penalty  for  his 

offense.     In   re  Lackey,  ...    S.  D 62  N.  W.  134.     A   fine  of  $10  and 

$54.60  costs,   imposed  by  a  justice  in  a  criminal  case,  and  a  judgment  that 


I 

326  justices'  code— south  Dakota. 


defendant  st^^nd  committed  until  the  fine  and  costs  should  be  paid,  is  unau- 
thorized, in  so  far  as  the  judgment  provides  that  defendant  stand  commit- 
ted, etc.;  and  defendant  was  entitled  to  be  discharged  after  five  days' im- 
prisonment.    Id. 

F/NE  AND  IMPRISONMENT—PROPORTIONS  BETWEEN.  §  6168 
Comp.  Laws.  A  judgment  that  the  defendant  pay  a  fine 
may  also  direct  that  he  be  imprisoned  until  the  tine  is  satisfied, 
in  the  proportion  of  one  day's  imprisonment  for  every  two  dol- 
lars of  the  fine.     (Sec.  127,  Jus.  C. ) 

Levisee,  p.  312. 

Consult  preceding  section,  and  decisions  thereunder. 

DISCHARGE  OF  DEFENDANT  ON  ACQUITTAL— COSTS— MA- 
LICIOUS PROSECUTION.  §  6169  Comp.  Laws.  When  the  defend- 
ant is  acquitted,  either  by  the  court  or  by  the  jury,  he  must  be 
immediately  discharged;  and  if  the  court  certify  in  the  minutes 
that  the  prosecution  was  malicious  or  without  probable  cause, 
it  may  order  the  prosecutor  to  pay  the  costs  of  the  action,  or  to 
give  satisfactory  security  by  a  written  undertaking,  with  one 
or  more  sureties,  to  pay  the  same  within  thirty  days  after  the 
trial.     (Sec.  128,  Jus.  C.) 

Levisee,  p.  312. 

Consult  sec.  6764,  Rev.  Codes,  N.  D.,  chap.  24,  post. 

JUDGMENT  ENTERED  IMMEDIATELY.  §  6170  Comp.  Laws. 
At  the  close  of  the  trial,  judgment  must  be  immediately  ren- 
dered by  the  justice,  and  entered  in  his  docket.  (Sec.  129, 
Jus.  Code.) 

Levisee,  p.  312. 

Consult  sees.  6167,  6168,  supra. 


CHAPTER  XX. 


Art.  2,  Chap.  2,  Justices'  Code — South  Dakota, 
appeals  in  criminal  proceedings. 

RIGHT  OF  APPEAL  ANNOUNCED— ORAL  APPEAL  NOTICE— NEW 
TRIAL  ABOVE,  ON  WHAT  ISSUES.     §  6177  Comp.  Laws.     The  jus- 


APPEALS  IN  CRIMINAL  PROCEEDINGS.  327 

tice,  immediately  on  rendering  judgment  against  the  defend- 
ant, must  inform  him  of  his  riglit  to  appeal  therefrom,  and  the 
defendant  may  thereupon  take  an  appeal  to  the  circuit  court  of 
the  county  or  subdivision  in  which  the  trial  was  had,  by  giving 
notice  orally  to  the  justice  that  he  appeals,  and  the  justice  must 
make  an  entry  on  his  docket  of  the  giving  of  such  notice;  aad 
upon  such  appeal  the  action  may  be  tried  anew  in  the  circuit 
court  upon  questions  of  law  and  fact,  or  fact  alone;  or  the  ap- 
peal may  be  determined  therein  upon  questions  of  law  alone, 
and  the  judgment  may  be  set  aside,  affirmed  or  modified,  or  a 
new  trial  granted  as  provided  in  section  6136  of  the  justices' 
code.     (Sec.  136,  Jus.  C.) 

Levisee,  p.  313. 

Consult  next  two  sections,-  sec.  6781,  Rev.  Codes,  N.  D.,  chap.  25,  post. 

APPEAL  AS  IN  CIVIL  ACTIONS— ALTERNATIVE  METHOD.  §  6178 
Comp.  Laws.  Instead  of  such  appeal,  the  defendant  may  at 
any  time  within  thirty  days  after  judgment,  appeal  to  such  cir- 
cuit court  in  the  same  manner  as  provided  in  sections  6129, 
6130,  6131  and  6132,  and  such  appeal  may  be  determined  there- 
in as  provided  for  in  section  6136  of  the  justices'  code.  (Sec. 
137,  Jus.  C.) 

Levisee,  p.  313. 

See  chap.  18,  ante,  as  to  appeal  in  civil  cases. 

Consult  preceding,  and  next  section;  sec.  6782,  Rev.  Codes,  N.  D.,chap. 
25,  post. 

BAIL  FIXED,  ON  APPEAL— STAY  UNDERTAKING.  §  6179  Comp. 
Laws.  Upon  an  appeal  the  justice  must  enter  an  order  on 
his  docket,  fixing  the  amount  in  which  bail  may  be  given  by 
the  defendant,  and  the  execution  of  the  judgment  shall  not  be 
stayed  unless  he  enter  into  an  undertaking  in  the  amount  fixed 
with  sufficient  surety  to  be  approved  by  the  justice  to  appear 
and  answer  at  the  next  term  of  the  circuit  court,  and  not  de- 
part without  leave  of  the  same.     (Sec.  138,  Jus.  C. ) 

Levisee,  p.  313. 

Consult  next  two  sections;  sec.  6783,  Rev,  Codes,  N.  D.,  chap.  25,  post. 

BAIL  TAKEN  BY  ANY  MAGISTRATE,  OR  CIRCUIT  COURT  OR 
CLERK.     §   &180,  Comp.  Laws.     The  bail  may  be  taken  by  the 


328  JUSTICES'  CODE— SOUTH  DAKOTA. 

justice  who  rendered  the  judgment,  or  by  any  magistrate  in  the 
county  who  has  authority  to  admit  to  bail,  or  by  the  circuit 
court  or  the  clerk  thereof.     (Sec.  139,  Jus.  C.) 

Levi  see,  p.  313. 

Consult  preceding  section. 

.  WITNESSES'  UNDERTAKING—OBLIGATIONS  OF.  §  6181  Comp. 
Laws.  When  an  appeal  is  taken,  the  justice  must,  if  applica- 
tion be  made  by  the  district  attorney,  cause  all  material  wit- 
nesses on  behalf  of  the  prosecution  to  enter  into  an  undertak- 
ing in  like  manner  as  in  a  case  where  a  defendant  is  held  to 
answer  on  a  preliminary  examination  for  an  indictable  offense. 
(Sec.  140,  Jus.  C.) 

Levisee,  p.  313. 

See,  as  to  commitment,  etc.,  to  answer  to  an  indictment,  sec.  7181, 
Comp.  Laws. 

TRANSCRIPT  ON  APPEAL— CONTENTS  OF— JUSTICE  COMPELLED 
WHEN-FINE  FOR  NEGLECT-BENEFIT  OF  OBJECTIONS.  §  6182  Comp. 
Laws.  Upon  an  appeal  being  taken,  the  justice  must,  within 
five  days,  transmit  to  the  clerk  of  the  circuit  court,  if  the  ap- 
peal be  upon  questions  of  law  alone,  a  certified  copy  of  his 
docket,  the  statement  as  admitted  or  as  settled,  the  notice  of 
appeal,  if  any,  and  the  undertaking  of  bail;  or,  if  the  appeal  be 
on  questions  of  fact,  or  both  law  and  fact,  a  certified  copy  of 
his  docket,  the  pleadings,  all  notices,  motions  and  other  papers 
filed  in  the  cause,  the  notice  of  appeal,  if  any,  and  the  under- 
takings filed;  and  the  justice  may  be  compelled  by  the  circuit 
court,  by  an  order  entered  upon  motion,  to  transmit  such  pa- 
pers, and,  if  the  return  be  defective,  to  make  further  return, 
and  may  be  fined  for  neglect  or  refusal  to  transmit  the  same. 
A  certified  copy  of  such  order  may  be  served  on  the  justice  by 
the  party  or  his  attorney.  In  the  circuit  court,  either  party 
may  have  the  beaefit  of  all  legal  objections  made  in  the  jus- 
tice's court.     (Sec.  141,  Jus.  C. ) 

Levisee,  p.  313. 

Consult  sec.  6132,  Comp.  Laws,  chap.  18,  ante',  sec.  6786,  Rev.  Codes,  N. 
D.,  chap.  25,  post. 

NO  APPEAL  DISMISSED— ENFORCEMENT  OF  JUDGMENT— NEW 
TRIAL  BELOW,   IF  GRANTED.     §  6183   Comp.  Laws.-    No   appeal 


APPEALS  IN  CRIMINAL  PROCEEDINGS.  329 

from  the  judgment  of  a  justice  of  the  peace  in  criminal  proceed- 
ings shall  be  dismissed.  All  proceedings  necessary  to  carry 
the  judgment  upon  appeal  into  effect  shall  be  had  in  the  circuit 
court;  provided,  hoioever,  that  when  a  new  trial  is  granted  the 
case  must  be  remanded,  and  the  new  trial  had  in  the  justice's 
court.     (Sec.  142,  Jus.  C. ) 

Levisee,  p.  314. 

Consult  sec.  6787,  Rev.  Codes,  N.  D.,  chap.  25,  Post. 


CHAPTER  XXI. 


Art.  2,  Chap.  3,  Justices'  Code — North  Dakota, 
appearance,  postponement  and  change  of  venue. 

APPEARANCE  IN  PERSON  OR  BY  ATTORNEY— WHO  MAY 
ACT  AS  ATTORNEY  §  6644  Rev.  Codes  N.  D.  In  a  justice's 
court  the  parties  may  appear  and  act  in  person  or  by  attorney 
and  any  person  may  act  as  attorney  except  a  practicing  attor- 
ney, or  other  person  occupying  the  same  room  in  which  the 
justice  has  his  office,  or  a  person  employed  in  serving  a  sum- 
mons or  venire.     (Sec.  12,  Jus.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  290;  sec.  6051,  Comp.  Laws. 

Consult  next  two  sections. 

APPEAR  IN  ONE  HOUR.  §  6645  Rev.  Codes  N.  D.  The 
parties  are  entitled  to  one  hour  in  which  to  appear  after  the 
time  stated  in  the  summons  or  any  time  fixed  for  further  pro- 
ceedings in  the  action  and  neither  party  is  bound  to  wait  long- 
er for  the  other.     (Sec.  18,  Jus.  C. ) 

Levisee,  p.  291;  sec.  6084,  Comp.  Laws,  chap.  16,  ante. 

Consult  preceding  and  following  section. 

ACTION  DEEMED  DISCONTINUED,  WHEN— CASE  CALLED 
WHEN.  §  6646  Rev.  Codes  N.  D.  If  neither  party  appears 
within  the  time  limited  by  the  preceding  section,  the  action  shall 
be  deemed  discontinued  and  there  shall  be  no  further  proceedings 
therein  unless  by  the  consent  of  both  parties;  if  both  parties 
2H— TP 


Sf30  JUSTICES'  CODE — NORTH  DAKOTA. 

appear,  the  case  may  be  called  when  they  appear,  but  if  only 
one  or  more  of  the  parties  appear,  the  case  shall  not  be  called 
until  the  expiration  of  the  hour  and  in  either  case  shall  be  dis 
posed  of  as  hereinafter  prescribed.     (Sec.    44,    Jus.   C,   am'd 
Rev.  Com'rs, ) 

Levisee,  p.  297;  sec.  6084,  Com  p.  Laws,  chap.  16,  ante. 

Consult  two  preceding  sections. 

SICKNESS,  ETC.,  OF  JUST/CE— ANOTHER  JUSTICE  ATTENDS^ 
DOCKET  ENTRIES.  §  6647  Rev.  Codes  N.  D.  In  case  of  the 
sickness  or  other  disability  or  necessary  absence  of  a  justice, 
on  a  return  of  a  summons  or  at  the  time  appointed  for  a  trial, 
another  justice  of  the  same  township  or  county  may  at  his  re- 
quest attend  in  his  behalf,  and  thereupon  is  vested  with  the 
power  for  the  time  being  of  the  justice  before  whom  the  sum- 
mons was  returnable.  In  that  case  the  proper  entry  of  the 
proceedings  before  the  attending  justice  subscribed  by  him 
must  be  made  in  the  docket  of  the  justice  before  whom  the 
summons  was  returnable.  If  the  case  is  adjourned,  the  justice 
before  whom  the  summons  was  returnable  may  resume  juris- 
diction.    (Sec.  100,  Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  308;  sec.  6140,  Comp.  Laws,  chap.  16,  ante. 

POSTPONEMENT  OF  HEARING— GROUNDS  FOR— HOW  LONG. 
§  6648  Rev.  Codes  N.  D.  The  court  may  of  its  own  motion 
or  on  application  of  a  party  postpone  the  hearing  or  trial: 

1.  For  not  exceeding  one  day  if  at  the  time  specified  in 
the  summons  or  order  of  the  court,  the  justice  is  sick  or  en- 
gaged in  the  trial  of  another  action. 

2.  For  not  exceeding  two  days,  if  by  amendment  of  a 
pleading  or  allowance  of  time  to  plead  or  amend,  a  postpone- 
ment is  rendered  necessary. 

3.  For  not  exceeding  three  days,  when  a  jury  is  required 
for  the  trial  of  an  issue  of  fact. 

4.  For  not  exceeding  thirty  days,  when  a  second  sum- 
mons is  issued  as  prescribed  by  section  6643  of  this  code. 
(Sec.  45,  Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  297;  sec.  6085,  Comp.  Laws,  chap.  16,  ante. 
Consult  next  two  sections, 


APPEARANCE,  POSTPONEMENT,  CHANGE  OF  VENUE.       331 

POSTPONEMENT  BY  CONSENT.  §  6649  Rev.  Codes  N.  D. 
The  court  may,  by  consent  of  the  parties  given  in  writing  or  in 
open  court,  postpone  the  trial  to  a  time  agreed  upon  by  the 
parties,     (Sec.  46,  Jus.  C. ) 

Levisee,  p.  297;  sec.  6086,  Comp.  Laws,  chap,  16,  ante. 

Consult  preceding  section. 

SAME— ON  PARTY'S  APPLICATION— SHOWING  NECESSARY 
FOR— AFFIDAVITS— TAKING  DEPOSITIONS,  PROCEDURE.  §  6650 
Rev.  Codes  N.  D.  The  trial  may  be  postponed  upon  the  appli- 
cation of  either  party  for  a  period  not  exceeding  sixty  days: 

1.  The  party  making  the  application  must  prove  by  his 
own  oath  or  otherwise,  that  he  cannot  for  want  of  material  tes- 
timony, which  he  expects  to  procure,  safely  proceed  to  trial 
and  must  show  in  what  respect  the  testimony  expected  is  ma- 
terial and  that  he  has  used  due  diligence  to  procure  it  and  has 
been  unable  to  do  so. 

2.  The  party  making  the  application  must,  if  required  by 
the  adverse  party,  consent  that  the  testimony  of  any  witness  of 
such  adverse  party,  who  is  in  attendance,  may  be  then  taken 
by  deposition  before  the  justice  and  that  the  testimony  so  tak- 
en may  be  read  on  the  trial  with  the  same  effect  and  subject  to 
the  same  objections  as  if  the  witness  was  produced;  but  the 
court  may  require  the  party  making  the  application  to  state 
upon  affidavit  the  evidence  which  he  expects  to  obtain;  and  if 
the  adverse  party  thereupon  admits  that  such  evidence  would 
be  given  and  agrees  that  it  be  considered  as  actually  given  on 
the  trial  or  offered  and  overruled  as  improper,  the  trial  must 
not  be  postponed. 

3.  If  the  trial  is  postponSd,  the  depositions  of  witnesses 
residing  out  of  the  county  or  state  may  be  taken  either  upon 
commission  issued  by  the  justice  or  upon  notice  to  take  depo- 
sitions in  the  same  manner  as  is  provided  by  the  code  of  civil 
procedure;  and  such  depositions  shall,  when  completed,  be  di- 
rected to  the  justice  and  be  published  by  the  justice  in  the  same 
manner  as  depositions  are  published  by  the  clerk  of  the  district 
court.  (Sec.  47,  Jus.  C,  Sec.  1,  chap.  86,  laws  1885,  Dak., 
am'd  Rev,  Com'rs. 


332  justices'  code — north  Dakota. 

Levisee,  p.  297-8;  sec.  6087,  Comp.  Laws,  chap.  16,  ante. 
Consult  two  preceding'  sections. 

UNDERTAKING  ON  POSTPONEMENT,  WHEN  REQUIRED— CONDI- 
TIONS OF.  §  6651  Rev.  Codes  N.  D.  No  postponement  shall  be 
granted  as  prescribed  in  the  preceding  section  for  more  than 
five  days,  unless  the  party  applying  for  the  postponement  files 
an  undertaking  executed  by  a  sufficient  surety  approved  by  the 
justice  to  the  effect  that  he  will  pay  to  the  adverse  party  all 
costs  which  he  shall  recover  in  the  action.  If  the  application 
is  made  by  the  defendant  in  an  action  of  forcible  detainer,  the 
undertaking  must  be  to  the  effect  that  the  surety  will  pay  to  the 
plaintiff  whatever  sum  he  shall  recover  in  the  action  including 
all  rents  and  profits  that  shall  accrue  to  him  during  the  post- 
ponement.    (Sec.  38,  48,  Jus.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  pp.  295,  298;  sec.  6077,  6088,  Comp.  Laws,  chap.  16,  ante. 

CHANGE  OF  VENUE— IN  WHAT  GASES— SHOWING  NECESSARY. 
§  6652  Rev.  Codes  N.  D.  The  court  may  at  any  time  before  the 
trial,  on  motion,  change  the  place  of  trial  in  the  following 
cases: 

1.  When  it  appears  to  the  satisfaction  of  the  justice  be- 
fore whom  the  action  is  pending  by  affidavit  of  either  party 
that  such  justice  is  a  material  witness  for  either  party. 

2.  When  either  party  makes  and  files  an  affidavit  that  he 
believes  he  cannot  have  a  fair  and  impartial  trial  before  such 
justice  by  reason  of  the  interest,  prejudice  or  bias  of  the  jus- 
tice. 

8.  When  from  any  cause  the  justice  is  disqualified  from 
acting. 

4.  When  the  justice  is  sicft  or  unable  to  act.  (Sec.  5, 
Jus.  C.) 

Levisee,  p.  288;  sec.  6045,  Comp.  Laws,  chap.  16,  amte;  see,  as  to  change 
of  venue  in  district  court,  sec.  5244,  Rev.  Codes,  N.  D. 

Consult  next  section. 

ONLY  ONE  CHANGE  ALLOWABLE— TRANSFER  OF  ACTION  ON— TO 
WHAT  JUSTICE.  §  6658  Rev.  Codes  N.  D.  The  place  of  trial 
cannot  be  changed  on  motion  of  the  same  party  more  than  once. 
When  the  court  orders  the  place  of  trial  to  be  changed,  the  ac- 


TRIAL   OF  ISSUE   OF   PACT.  333 

tion  must  be  transferred  for  trial  to  a  justice's  court  the  parties 
may  agree  upon,  and  if  they  do  not  so  agree,  then  to  the  next 
nearest  justice's  court  in  the  same  county.  (Sec.  6,  Jus.  C. 
Sec.  1,  chap.  88,  laws  1881,  Dak.) 

Levisee,  p.  289;  sec.  6046,  Comp.  Laws,  chap.  16,  ante. 

JURISDICTION  OF  COURT  ON  CHANGE  OR  VENUE— TRANSCRIPT 
—NOTICE  OF  TRIAL  §  6654  Rev.  Codes  N.  D.  From  the  time  the 
order  changing  the  place  of  trial  is  made,  the  court  to  which 
the  action  is  thereby  transferred  has  the  same  jurisdiction  over 
it  as  though  it  had  been  commenced  in  such  court.  After  an 
order  has  been  made  transferring  the  action  for  trial  to  another 
court  the  following  proceedings  must  be  had: 

1.  The  justice  ordering  the  transfer  must  immediately 
transmit  to  the  justice  of  the  court  to  which  it  is  transferred, 
on  payment  by  the  party  applying  of  one  dollar  for  the  trans- 
cript, all  the  papers  in  the  action  together  with  a  certified 
transcript  from  his  docket  of  the  proceedings  therein, 

2.  Upon  the  receipt  by  him  of  such  papers  the  justice  of 
the  court  to  which  the  case  is  transferred  must  issue  a  notice 
stating  when  and  where  the  trial  will  take  place,  which  notice 
must  be  served  upon  the  parties  at  least  one  day  before  the 
time  fixed  for  trial,  unless  such  notice  is  waived  b^  consent  of 
the  parties  entered  on  the  docket.  (Sec.  9,  Jus.  C.  Sec.  1, 
ch.  42,  laws  1879,  Dak. ) 

Levisee,  p,  289;  sec.  6047,  6048,  Comp.  Laws,  chap.  16,  ante. 
Consult  preceding  section. 


CHAPTER  XXII. 

Art.  6,  Chap.  8,  Justices'  Code — North  Dakota, 
trial  of  issue  of  fact. 

ISSUE  OF  FACT,  ARISES  UPON  WHAT.  §  6681  Rev.  Codes 
N.  D.     An  issue  of  fact  arises: 

1.  Upon  a  material  allegation  in  the  complaint  contro- 
verted by  the  answer;     or, 


334  justices'  code— north  Dakota. 


2.  Upon  new  matter  in  the  answer  not  admitted  in  the  re 
ply;  or, 

3.  Upon   new   matter   in   the   reply.     (Sec.    51,  Jus.    C. 
am'd  Rev.  Com'rs. 

Levisee,  p.  298;  sec.  6091,  Comp.  Laws,  chap.  17,  ante. 

ISSUE  OF  FACT  TRIED  BY  JURY— WAIVER— WHEN  COURT 
TRIES.  §  6682  Rev.  Codes  N.  D.  Issues  of  fact  must  be  tried 
by  jury  unless  a  jury  is  waived.  When  a  jury  is  waived,  the 
court  must  try  the  issues,  hear  the  allegations  and  proofs  of 
the  respective  parties  and  render  judgment  thereon.  (Sec.  53, 
Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  298;  sec.  6093,  Comp.  Laws,  chap.  17,  anie. 

TRIAL,  WHEN  COMMENCES— CONTINUANCES,  DAY  TO  DAY. 
§  6683  Rev.  Codes  N.  D.  Subject  to  the  provisions  of 
article  2  of  this  chapter  the  trial  must  commence  as  soon  as  the 
issues  are  joined  or  as  soon  as  the  jury  is  empaneled,  and  con- 
tinued until  concluded  without  an  intermission  for  more  than 
twenty-four  hours  at  any  one  time;  if  either  party  fails  to  ap- 
pear at  the  time  fixed  for  the  trial,  it  may  proceed  at  the  request 
of  the  adverse  party.     (Sec.  55,  Jus.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  298;  sec.  6095,  Com.  Laws,  chap.  17,  ante. 

JURY—HVW  WAIVED.  §  6684  Rev.  Codes  N.  D.  A  jury 
is  waived: 

1.  If  neither  party  before  the  commencement  of  the  trial 
demands  a  jury  as  prescribed  in  the  next  section. 

2.  If  either  party  fails  to  appear  at  the  time  fixed  for  the 
trial.     (Sec.  54,  Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  298;  sec.  6094,  Comp.  Laws,  chap.  17,  ante. 

JURY,  WHEN  DEMANDABLE—FEES.  §  6685  Rev.  Codes 
N.  D.  When  an  issue  of  fact  is  joined,  either  party  may  de- 
mand a  trial  by  jury  on  depositing  with  the  justice  a  sum  suffi- 
cient to  pay  the  jurors  their  fees  for  one  day's  attendance. 
(Sec.  56,  Jus.  C. ;   sec.  1,  ch.  33,  laws  1879,  am'd  Rev.  Com'rs.) 

Levisee,  p.  298;  sec.  6096,  Comp.  Laws,  chap.  17,  ante,  and  references 
and  decisions  thereunder. 

JURY,  HOW  COMPOSED— SIX,,  LESS  IF  AGREED.  §  6686 
Rev.  Codes  N.  D.     The  jury  shall  be  composed  of  six  residents 


TRIAL   OF   ISSUE   OF   FACT.  335 

of  the  county  having  the  qualifications  of  jurors  or  of  any  num- 
ber less  than  six  if  the  parties  so  agree,  who  shall  be  selected, 
summoned'and  impaneled  as  hereinafter  prescribed.  (Sec.  56, 
Jus.  C. ;  sec.  1,  ch.  33,  laws  1879,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  298-9;  sec.  6096,  Comp.  Laws,  chap.  17,  ante,  and  refer- 
ences and  decisions  thereunder. 

JURY,  HOW  SELECTED— VENIRE.  §  6687  Rev.  Codes  N. 
D.  Unless  the  persons  to  be  summoned  are  named  in  the 
agreement  of  the  parties,  the  justice  shall  write  down  the 
names  of  eighteen  residents  of  the  county  competent  to  sit  as 
jurors,  and  from  the  list  so  prepared,  the  parties  alternately, 
beginning  with  the  party  demanding  the  jury,  shall  strike  out 
one  name  each  until  there  remains  only  the  number  required 
to  constitute  the  jury.  If  either  party  refuses  to  strike  out  a 
name  the  justice  shall  act  for  him.  The  justice  shall  thereup- 
on issue  his  venire  to  the  sheriff  or  any  constable  of  the  county 
commanding  him  to  summon  the  persons  so  selected  or  agreed 
upon,  as  the  case  may  be,  to  appear  forthwith  or  at  a  fixed 
time  and  place  stated  therein,  to  serve  as  jurors  in  the  trial  of 
the  action.  (Sec.  56,  Jus.  C. ;  sec.  1,  ch.  33,  laws  1879,  am'd 
Rev.  Com'rs, ) 

Levisee,  p.  298-9;  sec.  6096,  Comp  Laws,  chap.  17,  ante,  and  references 
and  decisions  thereunder. 

SERVICE  OF  VENIRE— RETURN— DISOBEYING  VENIRE,  PUN- 
ISHMENT. §  6688  Rev.  Codes  N.  D.  The  officer  shall,  without 
unnecessary  delay,  serve  the  venire  upon  each  of  the  persons 
therein  mamed  by  reading  the  same  to  him  and  shall  state  in 
his  return  the  name  of  each  person  served  and  the  name  of 
each  person  who  cannot  be  found.  A  person  disobeying  a  ve- 
nire may  be  compelled  to  appear  or  be  punished  for  a  failure 
to  appear  in  the  same  manner  as  a  witness  who  disobeys  a 
subpoena.     (Adopted  through  Rev.  Com'rs. ) 

Sec.  56,  Jus.  C  ;  Levisee,  p.  298-9;  sec.  6096,  Comp.  Laws,  chap. 
17,  ante. 

ABSENTEES  BROUGHTIN— OTHERS  SUBSTITUTED,  FROM  WHAT 
LIST.  §  6689  Rev.  Codes  N.  D.  If  the  persons  so  summoned 
do  not  all  appear  at  the  proper  time,  the  justice   must  require 


336  JUSTICES'  CODE— NORTH  DAKOTA. 

the  absentees  to  be  brought  in  or  cause  others  to  be  substituted, 
or  if  any  person  appearing  as  a  juror  is  excused  for  legal 
cause  before  the  jurors  are  sworn  to  try  the  issue,  others  must 
be  substituted  until  the  required  number  of  jurors  is  obtained. 
The  persons  so  required  must  be  selected  and  summoned  forth- 
with as  hereinbefore  prescribed  from  a  list  containing  three 
times  as  many  names  as  there  are  jurors  to  be  substituted. 
(Sec.  57,  Jus.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  299;  sec.  6097,  Comp.  Laws,  chap.  17,  ante. 

JURORS  SWORN  TO  ANSWER  QUESTIONS— EXAMINATION  OF.  § 
6690  Rev.  Codes  N.  D.  Upon  the  appearance  of  a  sufficient 
number,  the  jurors  must  at  the  request  of  either  party  be  first 
sworn  to  answer  truly  all  questions  that  may  be  propounded  to 
them  by  the  court  or  by  the  parties  as  to  their  qualifications  to 
sit  as  jurors  in  the  trial  of  the  action  and  may  thereupon  be 
examined  accordingly.     (Sec,   57,  Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  299;  sec.  6099,  Comp.  Laws,  chap.  17,  ante. 

CHALLENGES,  SAME  AS  IN  DISTRICT  COURT— TRIAL  OF.  §  6691 
Rev.  Codes  N.  D.  Challenges  to  individual  jurors  are  allowed 
for  the  same  causes  as  in  a  civil  action  in  the  district  court,  but 
must  be  taken  before  the  jurors  are  sworn  to  try  the  issue,  and 
every  challenge  must  be  tried  in  a  summary  manner  by  the  jus- 
tice on  the  examination  of  the  juror  or  other  witnesses  under 
oath.     (Sec.  57,  Jus,  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  299;  sec.  5428,  Rev.  Codes  N.  D.,  ante,  pp.  9,  10;  sec.  6097, 
Comp.  Laws,  chap.  17,  ante. 

OATH  OF  JURORS.  §  6692  Rev.  Codes  N.  D.  As  soon  as  a 
sufficient  number  are  secured  and  accepted,  the  justice  shall 
administer  to  the  jurors  the  following  oath:  "You,  and  each 
of  you,  do  solemnly  swear  (or  affirm  as  the  case  may  be)  that 
you  will  well  and  truly  try  the  matters  in  issue  between  the 
plaintiff  and  defendant  and  a  true  verdict  rendered  according 
to  the  evidence. "     (Sec.  59,  Jus.  C,  am'd  Rev.  Com'rs;) 

Levisee,  p.  299;  sec.  6099,  Comp.  Laws.  chap.  17,  ante. 

SWEARING  JURY— PROOFS  HEARD^PRACTICE.  §  6693  Rev. 
Codes  N.  D.  After  the  jurors  are  sworn  to  try  the  issue,  they 
must  sit  together  and  hear  the  allegations   and  proofs  of  the 


TRIAL   OF   ISSUE   OF   FACT.  337 

parties,  which  must  be  delivered  in  public  in  the  presence  of 
the  justice  and  as  nearly  as  may  be  in  accordance  with  the  prac- 
tice in  the  district  court.  (Sec  119,  Jus.  C,  am'd  Rev. 
Com'rs. ) 

Levisee,  p.  311. 

DISCHARGE  OF  JURY— VERDICT  FIRST  RETURNED,  UNLESS.     § 

6694  Rev.  Codes  N.  D.  The  jury  cannot  be  discharged  after 
they  are  sworn  until  they  have  agreed  upon  and  returned  their 
verdict,  unless  for  good  cause  the  court  sooner  discharges 
them.     (Sec.  124,  Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  311. 

JUSTICE  DECIDES  LAW— JURY  NOT  INSTRUCTED— OPINION.  § 

6695  Rev.  Codes  N.  D.  The  justice  must  decide  all  questions 
of  law  arising  in  the  progress  of  the  trial,  but  must  not  instruct 
the  jury  upon  the  law  of  the  case,  nor  express  an  opinion  as  to 
any  matters  of  fact  in  controversy  therein.  (Sec.  120,  Jus.  C, 
am'd  Rev.  Com'rs. ) 

Levisee,  p.  311. 

JURY'S  DECISION— PROCEDURE— OFFICER'S  OA  TH.  §  6696  Rev. 
Codes  N.  D.  After  hearing  the  proofs  and  allegations,  the 
jury  may  decide  in  court  or  may  retire  for  consideration.  If 
they  do  not  immediately  agree,  an  officer  must  be  sworn  to  the 
following  effect: 

You  do  s'wear  that  you  will  keep  this  jury  together  in  some  quiet  and 
convenient  place;  that  you  will  not  permit  any  person  to  speak  to  them  nor 
speak  to  them  yourself  unless  by  order  of  the  court,  or  to  ask  them  whether 
they  have  agreed  upon  a  verdict;  and  that  you  will  return  them  into  court 
when  they  have  so  agreed  or  when  ordered  by  the  court.  (Sec.  121,  Jus.  C, 
am'd  Rev.  Com'rs.) 

Levisee,  p.  311. 

VERDICT  IN  WRITING— HOW  SIGNED— RENDITION  AND  ENTRY 
OF— CORRECTION  OF  §  6697  Rev.  Codes  N.  D.  The  verdict  of 
the  jury  must  be  in  writing,  and  be  signed  by  all  the  jurors  or 
by  one  of  them  as  foreman.  When  they  have  agreed  upon  their 
verdict  they  must  render  it  publicly  to  the  justice  and  it  must 
be  entered  in  the  docket  immediately,  but  if  the  verdict  is  not 
in  proper  form,  the  justice  may  inform  the  jury  accordingly 
22— TP 


338  JUSTICES'  CODE — NORTH  DAKOTA. 

and  require  them   to  correct  the  same.     (Sec.    122,   Jus.  C, 
am'd  Rev.  Com'rs. ) 
Levisee,  p.  311. 

FORM  OF  VERDICT— CLAIM  AND  DELIVERY—FORCIBLE  DE- 
TAINER—OTHER CASES— FOR  LIEN.  §  6698  Rev.  Codes  N.  D.  The 
verdict  shall  be  as  follows: 

1.  In  an  action  to  recover  possession  of  personal  prop- 
erty, to  the  effect  that  the  jury  find  the  plaintiff  or  defendant 
entitled  to  possession  or  if  not  in  possession,  to  a  delivery  of 
the  property  therein  described,  specifying  its  value  article  by 
article  and  to  damages,  if  claimed  for  its  detention,  in  a  sum 
therein  stated  as  assessed  by  the  jury.  If  the  finding  is  in  favor 
of  the  plaintiff  as  to  part  of  the  property,  the  verdict  shall  con 
tain  a  like  finding  in  favor  of  the  defendant  as  to  the  residue. 

2.  In  an  action  of  forcible  detainer  when  in  favor  of  the 
plaintiff,  to  the  effect  that  he  is  entitled  to  a  delivery  of  posses- 
sion and  to  rents,  profits  and  damages  if  claimed,  in  a  sum  as- 
sessed by  the  jury.  If  in  favor  of  the  defendant  a  finding  to 
that  effect  is  sufficient. 

3.  In  other  actions,  when  in  favor  of  the  plaintiff  or  plain- 
tiffs to  the  effect  that  the  jury  find  for  him  or  them  and  assess 
the  amount  of  the  recovery  at  a  sum  therein  stated  in  dollars 
and  cents;  or  if  there  are  several  defendants,  to  the  effect  that 
the  jury  find  for  the  plaintiff  and  assess  his  recovery  at  a  sum 
stated  as  against  all  or  against  one  or  more  of  the  defendants 
by  name  as  the  case  requires.  When  in  favor  of  the  defendant 
or  one  of  several  defendants,  to  the  effect  that  the  jury  find  for 
him  or  them  designating  each  by  name  if  necessary,  and  assess- 
ing the  amount  of  his  recovery,  if  determined  in  his  favor,  upon 
a  counterclaim. 

4.  When  the  plaintiff  is  entitled  to  satisfaction  of  the 
amount  expressed  in  the  verdict  out  of  personal  property  of  the 
defendant  by  virtue  of  a  mortgage  or  other  lien,  the  verdict 
shall  contain  a  further  finding  to  that  effect  with  a  particular 
description  of  the  property.      (Adopted  through  Rev.  Com'rs. ) 

See  sec.  39,  32,  Jus.  C;  Levisee,  pp.  296,  294;  sec.  6078,  Comp.  Laws, 
chap.  17,  ante. 


TRIAL   OF   ISSUE   OF   FACT.  339 

RETRIAL,  AFTER  DISAGREEMENT— PROCEDURE.  §  6699  Rev. 
Codes  N.  D.  If  the  jurors  are  discharged  without  rendering  a 
verdict  or  because  they  cannot  agree,  the  court  shall  proceed 
again  to  trial  as  in  the  first  instance  until  a  verdict  is  rendered. 
(Sec.  125,  Jus.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  311. 

NO  MOTION  IN  ARREST,  OR  TO  SET  ASIDE  VERDICT.  §  6700 
Rev.  Codes  N,  D.  No  motion  in  arrest  of  judgment  or  to  set 
aside  a  verdict  can  be  entertained  in  a  justice's  court.  (Adopt- 
ed through  Rev.  Com'rs. ) 

[Author's  Note.  The  following  sections  are  taken  from  Art.  3, 
Justices'  Code.] 

ISSUES—ORIGIN  OF.  §  6657  Rev.  Codes  N.  D.  An  issue 
arises  upon  the  pleadings  when  a  fact  or  conclusion  of  law  is 
maintained  by  one  party  and  controverted  by  the  other.  Issues 
are  of  two  kinds: 

1.  Of  law;  and, 

2.  Of  fact,     (Sec.  49,  Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  298. 

Consult    sec.    6089,    Comp.  Laws,  chap.  17,  ante;  chap.  1,  ante,  p.  1. 

ISSUE  OF  LAW.  §  6658  Rev.  Codes  N.  D.  An  issue  of  law 
arises  upon  the  demurrer  to  the  complaint,  answer  or  reply 
or  to  some  part  thereof.     (Sec.  50,  Jus.  C. ,  am'd  Rev.  Com'rs.) 

Levisee,  p.  298. 

Consult  sec.  6090,  Comp.  Laws,  chap.  17,  ante;  sec.  5028,  Comp.  Laws, 
ante,  p.  2, 

OF  LAW,  DETERMINED  BY  COURT— ORDER  OF  TRIAL  § 
6659  Rev.  Codes  N.  D.  Issues  of  law  must  be  determined  by 
the  court  and  be  disposed  of  in  the  order  in  which  they  are 
presented  before  the  trial  of  an  issue  of  fact.  (Sec.  52,  Jus. 
C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  298;  sec.  6092,  Comp.  Laws,  chap.  17,  ante;  sec.  5032, 
ante,  p.  3. 

GENUINENESS  OF  SIGNATURE— WHEN  DEEMED  ADMITTED. 
§  6668  Rev.  Codes  N.  D.  If  the  plaintiif  annexes  to  his  com- 
plaint or  files  with  the  justice  at  the  time  of  issuing  the  sum- 
mons the  original  or  a  copy  of  the  promissory  note,  bill  of  ex- 


840  JUSTICES'  CODE— NORTH  DAKOTA. 

change  or  other  written  obligation  for  the  payment  of  money 
upon  which  the  action  is  brought,  the  defendant  is  deemed  to 
admit  the  genuineness  of  the  signature  of  the  makers,  indors- 
ers,  guarantors,  acceptors  or  assignors  thereof,  unless  he  spe- 
cifically denies  the  same  in  his  answer  and  verifies  the  answer 
by  his  oath.     (Sec.  61,  Jus.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  299;   sec.  6101,  Com  p.  Laws,  chap.  17,  ante. 

Consult  sec.  436,  C.  C.  P.;  Levisee,  p.  127,  sec.  6643,  Rev.  Codes,  N.  D. 


CHAPTER    XXIII. 
Article  1,  Chap.  6,  Justice's  Code— North  Dakota. 

APPEALS. 

APPEAL  TO  DISTRICT  COURT,  HOW  TAKEN— NOTICE  AND  UN- 
DERTAKING. §  6771  Rev.  Codes  N.  D.  Any  party  dissatisfied 
with  a  judgment  rendered  in  a  civil  action  in  a  justice's  court 
whether  the  same  was  rendered  on  default  or  after  a  trial,  may 
appeal  therefrom  to  the  district  court  of  the  county  or  subdivis- 
ion at  any  time  within  thirty  days  after  the  rendition  of  the 
judgment.  The  appeal  is  taken  by  serving  the  notice  of  appeal 
on  the  adverse  party  or  his  attorney  and  by  filing  the  notice  of 
fippeal  together  with  the  undertaking  required  by  law  with  the 
clerk  of  the  district  court  of  the  county  to  which  the  appeal  is 
taken.     (Adopted  through  Rev.  Com'rs. ) 

Sec.  89,  Jus.  C;  Levisee,  p.  305,  sec.  6129,  Comp.  Laws,  chap.  18,  ante, 
and  decisions  thereunder. 

Consult  the  following  sections. 

UNDERTAKING  ON  APPEAL— CONDITIONS  OF— APPROVED  BY 
DISTRICT  CLERK.  §  6772  Rev.  Codes  N.  D.  To  render  an  appeal 
effectual  for  any  purpose,  an  undertaking  must  be  executed  on 
the  part  of  the  appellant  by  sufficient  surety  to  the  effect  that 
the  appellant  will  pay  all  costs  which  may  be  awarded  against 
him  on  the  appeal  not  exceeding  one  hundred  dollars,  which 
undertaking  shall  be  approved  by  and  filed  in  the  office  of  the 


APPEALS.  341 

clerk  of  the  district  court  of  the  county  to  which  the  appeal  is 
taken.     (Adopted  through  Rev.  Com'rs. ) 

Sec.  93,  Jus.  C;  Levisee,  p.  306;  sec.  6133,  Comp.  Laws,  chap.  18,  ante, 
and  decisions  thereunder. 

Consult  three  following  sections. 

STAY  OF  EXECUTION-CONDITIONS  OF  UNDERTAKING-IN  CLAIM 
AND  DELIVERY— APPROVAL  OF.  §  6773  Rev.  Codes  N.  D.  If  the 
appellant  desires  a  stay  of  execution  an  undertaking  must  be 
executed  on  his  part  by  sufficient  surety  to  the  effect,  that  if 
the  appeal  is  dismissed,  the  appellant  will  pay  the  amount  of 
the  judgment  appealed  from  and  all  costs  or  if  judgment  is  ren- 
dered against  him  in  the  appellate  court,  that  he  will  pay  the 
amount  of  such  judgment  and  all  costs  not  exceeding  a  sum 
specified  in  the  undertaking,  which  must  be  at  least  one  hun- 
dred dollars  and  not  less  than  twice  the  amount  of  the  judgment 
appealed  from;  or,  if  the  judgment  appealed  from  is  for  the  re- 
covery of  specific  personal  property,  an  undertaking  must  be 
executed  on  the  part  of  the  appellant  by  sufficient  surety  to  the 
effect  that  if  the  appeal  is  dismissed  or  if  judgment  is  rendered 
against  the  appellant  in  the  appellate  court,  the  appellant  will 
deliver  the  property  described  in  the  judgment  and  pay  the 
damages  awarded  for  the  taking  or  detention  thereof  and  all 
costs  or  pay  the  sum  fixed  by  the  judgment  as  the  value  of  the 
property  together  with  the  damages  awarded  for  the  taking  or 
detention  thereof  and  all  costs.  Such  undertaking  shall  be  ap- 
proved and  filed  as  provided  in  the  last  section.  (Adopted 
through  Rev.  Com'rs.) 

Sec.  93,  Jus.  C;  Levisee,  p.  306;  sec.  6133,  Comp.  Laws,  chap.  18,  ante^ 
and  decisions  thereunder. 

STAY  IN  FORCIBLE  DETAINER— CONDITIONS  OF— ADDITIONAL 
UNDERTAKING,  §6774  Rev.  Codes  N.  D.  In  judgments  for  the 
delivery  of  possession  in  actions  of  forcible  detainer  the  execu- 
tion of  the  same  shall  not  be  stayed,  unless  a  written  under- 
taking is  executed  on  the  part  of  the  appellant  with  sufficient 
surety  to  the  effect  that  during  the  possession  of  such  property 
by  the  appellant,  he  will  not  commit  or  suffer  to  be  committed 
any  waste  thereon  and  that  if  the  appeal  is  dismissed  or  judg- 


342  justices'  code — north  Dakota.    . 

ment  is  rendered  against  the  appellant  in  the  appellate  court, 
he  will  pay  all  rents  for  the  use  and  occupation  of  the  property 
and  all  damages  from  the  time  of  the  appeal  until  the  delivery 
of  the  possession  thereof.  Such  undertaking  is  in  addition  to 
the  undertaking  provided  for  in  the  last  section  and  shall  be 
approved  and  filed  in  the  manner  provided  in  section  6772. 
(Adopted  through  Rev.  Com'rs. ) 

Sec.  94,  Jus.  C;  Levisee,  p.  306;  sec.  6134,  Comp.  Laws,  chap.  18, 
ante,  and  decisions  thereunder. 

Consult  two  preceding,  and  two  following  sections. 

MONEY  IN  LIEU  OF  UNDERTAKING— EFFECT  OF  DEPOSIT.  §  6775 
Rev.  Codes  N.  D.  When  the  appellant  is  required  under  any 
provision  of  this  article  to  give  an  undertaking,  he  may  in 
lieu  thereof  deposit  with  the  clerk  of  the  district  court  in  whose 
oflBce  the  notice  of  appeal  is  required  to  be  filed,  who  shall  give 
a  receipt  therefor,  a  sum  of  money  equal  to  the  amount  for 
which  such  undertaking  is  required  to  be  given  and  in  lieu  of 
the  service  of  such  undertaking  serve  a  notice  of  the  making  of 
such  deposit.  Such  deposit  and  notice  shall  have  the  same  ef- 
fect as  the  service  of  the  required  undertaking  and  be  held  to 
answer  the  event  of  the  appeal  upon  the  terms  prescribed  for 
the  undertaking  in  lieu  of  which  the  same  is  deposited, 
(Adopted  through  Rev.  Com'rs.) 

Sec.  93,  Jus.  C;  Levisee,  p.  306;  sec.  6133,  Comp.  Laws,  chap.  18, 
ante,  and  decisions  thereunder. 

Consult  four  preceding  sections. 

UNDERTAKING  AND  PLEADING  SERVED  WITH  APPEAL  NOTICE 
—EXCEPTION  TO  SURETY— JUSTIFICATION— DISMISSAL  OF  AP- 
PEAL. §  6776  Rev.  Codes  N.  D.  The  undertaking  given  on 
appeal  and  appellant's  pleading,  if  the  judgment  appealed  from 
was  taken  by  default,  must  be  served  with  the  notice  of  appeal. 
The  adverse  party  may  except  to  the  sufiiciency  of  the  surety 
upon  any  undertaking  on  appeal  within  five  days  after  its  ser- 
vice upon  him.  Thereupon  the  surety  must  justify  upon  like 
notice  and  in  like  manner  as  bail  upon  an  arrest;  or  a  new  un- 
dertaking must  be  given  with  new  surety  and  thereupon  the 
same  proceedings  may  be  had  as  upon  the  original  undertak- 


APPEALS.  343 

ing.  Unless  such  surety  justifies  or  a  new  undertaking  with 
new  surety  is  given  and  justifies,  if  required,  the  appeal  must 
on  motion  of  the  respondent  be  dismissed;  but  the  liability  of 
the  surety  upon  any  undertaking  given  on  appeal  shall  not 
be  thereby  released.     (Adopted  through  Rev.  Com'rs. ) 

Sec.  93,  Jus.  C;  Levisee,  p.  306;  sec.  6133,  Comp.  Laws,  chap.  18, 
ante,  and  decisions  thereunder. 

Consult  sec.  6771,  supra. 

DISTRICT  CLERK  NOTIFIES  JUSTICE  OF  APPEAL— TRANSCRIPT 
ON  APPEAL— NEGLECT.  §  6777  Rev.  Codes  N.  D.  Upon  the  fil- 
ing of  the  notice  of  appeal  and  undertaking,  or  the  making  of 
the  deposit  prescribed  in  section  6775  in  the  ofiice  of  the  clerk 
of  the  district  court,  such  clerk  shall  immediately  mail  to  the 
justice  of  the  court  in  which  the  judgment  appealed  from  was 
rendered  a  written  notice  thereof,  specifying  the  court  in  which 
the  judgment  was  rendered,  the  names  of  the  parties,  the  date 
and  amount  of  the  judgment  appealed  from  and  stating  wheth- 
er the  undertaking  filed  or  deposit  made  entitles  the  appellant 
to  a  stay  of  execution  and  requiring  such  justice  to  transmit  to 
such  clerk  the  record  required  by  law.  Such  justice  must  with- 
in ten  days  after  the  receipt  of  such  notice  transmit  to  the 
clerk  of  the  district  court  a  record  which  shall  contain  a  certi- 
fied copy  of  the  justice's  docket,  the  pleadings,  all  notices,  mo- 
tions and  other  papers  filed  in  the  cause.  The  justice  may  be 
compelled  by  the  district  court  by  order  entered  upon  motion 
to  transmit  such  record  and  may  be  fined  for  neglect  or  refusal 
to  to  do.  A  certified  copy  of  such  order  may  be  served  on  the 
justice  by  the  party  or  his  attorney.  (Adopted  through  Rev. 
Com'rs. ) 

Consult  sec.  6771,  supra,  and  generally,  the  preceding  sections. 

STAY  OF  EXECUTION  ORDERED,  WHEN-RELEASE  OF  LEVY. 
§  6778  Rev.  Codes  N.  D.  If  an  execution  has  been  issued,  the 
justice  must,  if  the  written  notice  received  from  the  clerk 
states  that  the  undertaking  filed  or  deposit  made  entitles  the 
appellant  to  a  stay  of  execution,  by  order  direct  a  stay  of  all 
proceedings  on  the  same.  The  officer  in  whose  hands  such  ex- 
ecution may  be  must  upon  payment  of  his  fees  for  services  ren- 


344  justices'  code — north  Dakota. 

dered  upon  the  execution  relinquish  all  property  levied 
upon  and  deliver  the  same  to  the  judgment  debtor  together 
with  all  moneys  collected  from  sales  or  otherwise.  If  his  fees 
are  not  paid  the  ofl&cer  may  retain  so  much  of  the  property  or 
proceeds  thereof  as  may  be  necessary  to  pay  the  same. 
(Adopted  through  Rev.  Com'rs. ) 

Sec.  95,  Jus.  C;  Levisee,  p.  307;  sec.  6135,  Comp.  Laws,  chap. 
18,  supra. 

NEW  TRIAL  ON  APPEAL— NOTICE  OF  TRIAL,  NOTE  OF  ISSUE 
UNNECESSARY— CALENDAR.  §  6779  Rev.  Codes  N.  D.  The  action 
shall  be  tried  anew  in  the  district  court  in  the  same  manner  as 
actions  originally  commenced  therein.  No  notice  of  trial  and 
note  of  issue  shall  be  required  to  be  served  or  filed  in  order  to 
bring  the  case  upon  the  trial  calendar  in  the  district  court  but 
the  -record  of  such  appeal  shall  be  filed  by  the  clerk  of  the  dis- 
trict court  and  the  action  entered  upon  the  calendar.  (Adopted 
through  Rev,  Com'rs. ) 

DISMISSAL  OF  APPEAL— COPY  OF  ORDER  FILED  BELOW,  WHEN 
—JUDGMENT  BELOW  ENFORCED— APPEAL  TO  SUPREME  COURT 
§  6780  Rev.  Codss  N.  D.  When  an  appeal  to  the  district  court  is 
dismissed  and  no  appeal  is  taken  to  the  supreme  court  from  the 
judgment  for  costs  rendered  in  the  district  court  upon  the  dis- 
missal thereof,  a  certified  copy  of  the  order  dismissing  the  same 
shall  be  filed  in  the  justice's  court  in  which  the  judgment  was 
rendered  and  thereafter  the  judgment  appealed  from  shall  have 
the  same  force  and  validity,  and  may  be  enforced  in  the  sau^^ 
manner  as  if  no  appeal  had  been  taken.  In  case  an  appeal  is 
taken  to  the  supreme  court  after  a  certified  copy  of  the  order 
aforesaid  is  filed  in  the  justice's  court,  the  judgment  therein 
shall  be  suspended  until  the  further  order  of  the  district  court. 
(Adopted  through  Re^.  Com'rs. ) 


TRIAL  PROCEDURE  IN  CRIMINAL  ACTIONS.  345 


CHAPTER  XXIV. 

Chap.  5,  Justices'  Code — North  Dakota. 

TRIAL  PROCEDXTRE  IN  CRIMINAL  ACTIONS. 

PLEAS,  ORAL  AND  DOCKETED— REFUSAL  TO  PLEAD,  §  6754 
Rev,  Codes  N.  D.  The  defendant  may  make  the  same  pleas  as 
to  an  information  or  indictment.  His  plea  may  be  oral  and 
must  be  entered  in  the  docket.  If  he  refuses  to  plead,  a  plea 
of  "not  guilty"  must  be  entered.  (Sec.  110,  Jus.  C,  am'd 
Rev.  Com'rs. ) 

Levisee,  p.  810. 

Consult  next  two  sections;  sec.  6151,  Comp.  Laws,  chap.  19,  ante. 

PLEA  OF  GUILTY— WITNESSES  EXAMINED— WHEN  PLEA  RE- 
FUSED—PRELIMINARY  EXAMINATION,  WHEN— PROCEDURE.  §6755 
Rev.  Codes  N.  D.  If  the  defendant  pleads  guilty,  the  court  be- 
fore accepting  the  plea  may  examine  witnesses  to  ascertain  the 
gravity  of  the  offense;  and  if  it  appears  from  the  testimony 
that  the  offense  committed  is  of  a  higher  grade  than  that 
charged  in  the  complaint,  the  court  may  refuse  to  accept  the 
plea  and  direct  a  complaint  to  be  filed  charging  the  offense  ac- 
cordingly and  proceed  with  a  preliminary  examination  of  the 
defendant  as  prescribed  in  the  code  of  criminal  procedure. 
(Sec.  110,  Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  310. 

As  to  preliminary  examinations  under  C.  Or.  Proc,  see  sec.  7950,  Rev. 
Codes,  et  seq. 

Consult  next  section,  and  preceding  section. 

PLEA  OTHER  THAN  GUILTY- WHO  TRIES— JURY,  WHEN  OF 
TWELVE.  §  6756  Rev.  Codes  N,  D.  When  the  defendant 
makes  any  plea  other  than  the  plea  of  guilty,  the  issue  shall 
be  tried  by  the  court  unless  a  jury  is  demanded;  but  if  either 
party  demands  a  jury  before  the  court  hears  any  testimony,  the 
issue  must  be  tried  by  a  jury  of  twelve  persons.  (Sec.  Ill, 
Jus.  C,  am'd  Rev.  Com'rs.) 

Levisee,  p.  310. 
22i— TP 


346  justices'  code — north  Dakota. 

Consult  preceding  section;  sec.  6152,  Comp.  Laws,  chap.  19,  ante. 

See  Belatti  v.   Pierce,  Police  Justice,  ....  S.  D ,  66  N.  W.  1088, 

as  to  right  of  trial  by  jury  for  violation  of  a  city  ordinance;  cited  under  sec. 
6157,  Comp.  Laws,  chap.  19,  ante. 

FORMAT/ON  OF  JURY,  WHAT  PROVISIONS  APPLY— TRIAL 
§  6757  Rev.  Codes  N.  D.  The  provisions  of  article  6  of  chap- 
ter 3  of  this  code  apply  to  the  formation  of  the  jury  and  the 
conduct  of  the  trial  except  as  otherwise  prescribed  by  this 
chapter.     (Sec.  116,  Jus.  C,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  310. 

See,  for  art.  6,  chap.  3  of  this  code,  sees.  6681  to  6698,  Rev.  Codes, 
chap.  22,  ante. 

Consult  preceding  section;  sec.  6157,  Comp.  Laws,  chap.  19,  ante,  and 
decisions  thereunder. 

CHALLENGES,  WHAT  PROVISIONS  APPLY  TO  TAKING  OF  § 
6758  Rev.  Codes  N.  D.  Challenges  may  be  taken  by  either 
party  to  individual  jurors  for  the  same  causes  as  on  a  trial  in 
the  district  court  for  a  criminal  offense.  (Sec.  117,  Jus.  C,  as 
am'd  Rev.  Com'rs. ) 

Levisee,  p.  310. 

See,  as  to  challenges,  sees.  8160  to  8166,  Rev.  Codes,  chap.  28,  Post. 
Consult  preceding  section;  sec.  6158,  Comp.  Laws,  chap.  19,  ante. 

JUROR'S  OATH.  §  6759  Rev.  Codes  N.  D.  The  court  must 
administer  to  the  jury  the  following  oath:  You  do  swear  (or 
affirm)  that  you  will  well  and  truly  try  this  issue  between  the 
state  of  North  Dakota  and  A.  B. ,  the  defendant,  and  a  true 
verdict  render  according  to  the  evidence.  So  help  you  God. 
(Sec.  118,  Jus.  C,  as  am'd  Rev.  Com'rs.) 

Levisee,  p.  311. 

Consult  sec.  6159,  Comp.  Laws,  chap.  19,  ante. 

DEFENDANT  PRESENT  AT  TRIAL  §  6760  Rev.  Codes  N.  D. 
The  defendant  must  be  personally  present  during  the  progress 
of  the  trial.     (Sec.  115,  Jus.  C. ) 

Levisee,  p.  311. 

Consult  sec.  6156,  Comp.  Laws,  chapter  19,  ante. 

VERDICT  ON  PLEA  OF  GUILTY— ON  OTHER  PLEA— FORM  OF  § 
6761  Rev.  Codes  N.  D.  The  verdict  of  the  jury  on  a  plea  of 
not  guilty  must  be  to  the  effect  that  the  jur^  find  the  defend^ 


TRIAL  PROCEDURE  IN  CRIMINAL  ACTIONS.  Ml 

ant  "guilty, "  or  "not  guilty,"  as  the  case  may  be.  On  any 
other  plea  the  verdict  must  be  ''for  the  state,"  or  "for  the  de- 
fendant."     (Sec.  122.  Jus.  C,  as  am'd  Rev.  Com'rs. ) 

Levisee,  p.  311. 

Consult  next  section;  sec.  6163,  Comp.  Laws,  chap.  19,  ante. 

VERDICT  AS  TO  SOME  OF  DEFENDANTS,  WHEN— RE-TRIAL  OF 
BALANCE.  §  6762  Rev.  Codes  N.  D.  When  several  defend- 
ants are  tried  together,  if  the  jury  cannot  agree  upon  a  verdict 
as  to  all,  they  may  render  a  verdict  as  to  those  in  regard  to 
whom  they  do  agree  on  which  a  judgment  must  be  entered 
accordingly,  and  the  case  as  to  the  rest  may  be  tried  by  an- 
other jury.     (Sec.  123,  Jus.  C,  as  am'd  Rev.  Com'rs.) 

Levisee,  p.  311. 

Consult  preceding  section;  sec.  61.64,  Comp.  Laws,  chap.  19,  ante^ 

JUDGMENT  RENDERED  AND  ENTERED  IMMEDIATELY.  §  6763 
Rev.  Codes  N.  D.  When  the  verdict  is  received  the  court  must 
immediately  render  judgment  thereon  and  enter  the  same  in 
the  docket.     (Sec.  129,  Jus.  C,  as  am'd  Rev.  Com'rs.) 

Levisee,  p.  S12. 

Consult    next    two    sections;  sec.    6170,    Comp.  Laws,  chap.  19,   ante. 

WHEN  JUGDMENT  OF  ACQUITTAL  RENDERED— DISCHARGE  OF 
DEFENDANT. .  §  6764  Rev.  Codes  N.  D.  When  the  defendant 
is  acquitted  by  the  court  or  by  a  verdict  of  '  'not  guilty"  or, 
"for  the  defendant,"  a  judgment  of  acquittal  must  be  rendered 
and  if  the  defendant  is  not  detained  on  legal  process  for  any 
other  cause,  he  must  be  immediately  discharged.  (Sees.  128, 
130,  Jus.  C,  as  am'd  Rev.  Com'rs.) 

Levisee,  p.  313. 

Consult  preceding  and  next  section;  sec.  6169,  Comp.  Laws,  chap.  19, 
ante. 

JUDGMENT  OF  CONVICTION,  WHEN— PUNISHMENT  PRE- 
SCRIBED—HOW SATISFIED— MITIGATING  CIRCUMSTANCES.  § 
6765  Rev.  Codes  N.  D,  When  the  defendant  is  convicted  by 
the  court  or  by  a  verdict  of  "guilty"  or  a  verdict  "for  the 
state"  which  does  not  also  find  the  defendant  not  guilty,  the 
court  shall  render  judgment  that  he  be  punished  by  a  fine  or 
by  imprisonment  in  the  county  jail  or  by  both  fine  and  impris- 


348  JUSTICES'   CODE— NORTH   DAKOTA. 

onment,  specifying  the  amount  of  the  fine  or  time  of  imprison- 
ment. A  judgment  of  fine  only  may  also,  direct  that  the  de- 
fendant be  imprisoned  until  the  same  is  satisfied.  In  a  case  in 
which  the  court  has  a  discretion  as  to  the  extent  of  the  punish- 
ment, it  may,  upon  the  suggestion  of  either  party  before  ren- 
dering judgment,  hear  testimony  as  to  circumstances  proper  to 
be  considered  in  aggravation  or  mitigation  of  punishment. 
(Sec.  126,  Jus.   C.) 

Levisee,  p.  311. 

Consult  two  preceding  sections;  sec.  6167,  Comp.  Laws,  chap.  19, 
ante,  and  decisions  thereunder. 

RIGHT  OF  APPEAL— DEFENDANT  INFORMED  OF— BAIL  ON, 
AMOUNT  OF.  §  6766  Rev.  Codes  N.  D.  If  the  defendant  is  con- 
victed, the  justice  when  he  renders  judgment  must  inform  him 
of  his  right  to  appeal  and  prescribe  the  amount  in  which  he 
may  give  bail  for  his  appearance  in  the  district  court  in  case  of 
an  appeal.     (Adopted  through  Rev.  Com'rs.) 

Sec.  138,  Jus.  C;  Levisee,  p.  313. 

Consult  preceding  section;  sec.   6179,   Comp.    Laws,   chap.    20,   ante. 


CHAPTER  XXV. 

Art.  2,  Chap.  6,  Justices'  Code — North  Dakota. 
appeai.s  in  criminal  actions. 

APPEAL  TO  DISTRICT  COURT— NOTICE  OF— BAIL  FOR  APPEAR- 
ANCE. §  6781  Rev.  Codes  N.  D.  A  defendant  in  a  criminal 
action  may  appeal  from  the  judgment  of  a  justice  of  the  peace 
at  any  time  within  thirty  days  by  giving  notice  of  the  appeal 
and  giving  bail  for  his  appearance  in  the  district  court  as  pre- 
scribed in  this  article.  (Sec.  136,  Jus.  C,  as  am'd  Rev. 
Com'rs.) 

LeTisee,  p.  313. 
Consult  next  section;  sec.  6177,  Comp.  Laws;  chap.  20,  ante. 

NOTICE  OF,  ORAL,  OR  BY  FILING,  AND  SERVING  COPY.  § 
6782  Rev.   Codes  N.  D.     The  notice  may  be  given  by  stating 


APPEALS  IN  CRIMINAL  ACTIONS.  349 

orally  to  the  justice  at  the  time  of  rendering  judgment  that  the 
defendant  appeals,  or  by  filing  with  the  justice  a  written  notice 
of  appeal  and  serving  a  copy  thereof  on  the  state's  attorney  of 
the  county  within  the  prescribed  time.  (Sec.  137,  Jus.  C,  as 
am'd  Rev.  Com'rs. ) 

Levisee,  p.  313. 

Consult  sees.  6177,  6178,  Comp.  Laws,  chap.  20,  ante. 

BAIL  ON  APPEAL,  APPROVED  UNDERTAKING,  OR  DEPOSIT. 
§  6783  Rev.  Codes  N.  D.  Bail  must  be  given  in  the  sum  fixed 
by  the  justice  to  the  effect  that  the  defendant  shall  appear  in 
the  district  court  on  the  first  day  of  the  next  term  convening 
within  the  county  there  to  answer  the  complaint  and  abide  the 
further  orders  of  the  court.  Such  bail  may  be  given  by  the 
written  undertaking  of  one  or  more  sufftcient  sureties  approved 
by  the  justice  or  by  a  deposit  of  money  in  lieu  of  sureties. 
(Sec.  138,  Jus.  C,  as  am'd  Rev.  Com'rs. ) 

Levisee,  p.  313. 

Consult  sec.  6179,  6180,  Comp.  Laws,  chap.  20,  ante. 

APPROVAL  OF  UNDERTAKING,  WHEN  BY  DISTRICT  CLERK.  § 
6784  Rev.  Codes  N.  D.  If  the  justice  refuses  to  approve  the 
undertaking,  it  may  be  approved  by  the  clerk  of  the  district 
court  and  filed  with  the  justice  with  the  same  effect  as  if  ap- 
proved by  him.     (Sec.  139,  Jus.  C. ,  as  am'd  Rev.  Com'rs.) 

Levisee,  p.  318. 

Consult  preceding-  section;  sees.  6179,  6180,  Comp.  Laws,  chapter 
20,  ante. 

WITNESSES'  UNDERTAKING,  OBLIGATIONS  OF.  §  6785  Rev. 
Codes  N.  D.  When  an  appeal  is  taken,  the  justice  must,  if  ap- 
plication is  made  by  the  state's  attorney,  cause  all  material 
witnesses  on  behalf  of  the  prosecution  to  enter  into  an  under- 
taking in  like  manner  as  in  a  case  when  a  defendant  is  held  to 
answer  on  a  preliminary  examination.  (Sec.  140,  Jus.  C,  as 
am'd  Rev.  Com'rs.) 

Levisee,  p.  313. 

See,  as  to  witness'  undertaking  on  commitment  of  defendant  on  pre- 
liminary examination,  sec.  7972,  Rev.  Codes;  and  consult  sec.  6181,  Comp. 
Laws,  chap.  20,  ante. 


350  justices'  code— north  Dakota. 


TRANSCRIPT  ON  APPEAL,  CONTENTS  OF— COMPELLING  CERTI- 
FICATE—MONEY FOR  BAIL  §  6786  Rev.  Codes  N.  D.  The  jus- 
tice must  ■within  five  days  after  an  appeal  is  taken  transmit  to 
the  clerk  of  the  district  court  a  certified  copy  of  his  docket  and 
all  papers  relating  to  the  case  as  on  appeal  in  a  civil  action, 
and  may  be  compelled  to  do  so  or  make  a  further  return  in 
like  manner.  If  money  has  been  deposited  in  lieu  of  bail  it 
must  accompany  the  return.  (Sec.  141,  Jus.  C,  as  ara'd  Rev. 
Com'rs. ) 

Levisee,  p.  313. 

Consult  sec.  6182,  Comp.  Laws,  chap.  20,  ante. 

EFFECT  OF  APPEAL— TRIAL  ANEW  ABOVE— JURISDICTION  OF 
JUSTICE— DEMURRER  —  NEW  PLEA— JUDGMENT.  §  6787  Rev. 
Codes  N.  D.  An  appeal  duly  perfected  transfers  the  action  to 
the  district  court  for  trial  anew  regardless  of  any  ruling  or  de- 
cision of  the  justice.  But  the  defendant  may  move  to  dismiss 
the  complaint  on  the  ground  that  the  justice  did  not  have  jur- 
isdiction of  the  offense.  He  may  also  demur  to  the  complaint 
because  more  than  one  offense  is  charged  therein  or  because 
the  facts  stated  do  not  constitute  a  public  offense.  If  he  does 
not  object  to  the  complaint  for  the  causes  above  specified  or  if 
his  objections  are  overruled  he  must  be  required  to  plead  as  to 
an  indictment  or  information  without  regard  to  any  plea  en- 
tered before  the  justice.  In  other  respects  the  proceedings 
shall  be  the  same  as  in  criminal  actions  originally  commenced 
in  the  district  court  and  judgment  shall  be  rendered  and  car- 
ried into  effect  accordingly.  (Sec.  141,  Jus.  C,  as  am'd  Rev. 
Com'rs.) 

Levisee,  p.  313. 

Consult  next  section;  sec.  6182,  Comp.  Laws,  chap.  20,  ai\te. 

NO  APPEAL  DISMISSED— JUDGMENT  BELOW  AFFIRMED,  WHEN 
—ENFORCEMENT  OF  §  6788  Rev.  Codes  N.  D.  No  appeal  from 
the  judgment  of  a  justice  of  the  peace  in  a  criminal  action  shall 
be  dismissed.  But  if  the  appeal  was  not  taken  in  time  or  if  the 
defendant  fails  to  appear  in  the  district  court  when  his  pres- 
ence is  required,  the  judgment  of  the  justice  shall  be  summar- 
ily affirmed  and  entered  as  the  judgment  of  the  district  court 


THE  MODE  OF  TRIAL.  351 

and  carried  into  effect  as  such.     (Sec.  142,  Jus.  C,  asam'dRev. 
Com'rs.) 

Levisee,  p.  314. 

Consult  preceding  section;  sec.    6185,    Comp.  Laws,  chapter  20,   ante. 


CHAPTER    XXVI. 

Chap.  6,  Title  7,  Code  Criminal  Procedure,  S.  D. 
Art.  6,  Chap.  9,  Code  Criminal  Procedure,  N.  D. 

THE  MODE  OF  TRIAL. 

ISSUE  OF  FACT,  ORIGIN  OF  §  7319  Comp.  Laws;  §  8123 
Rev.  Codes  N.  D.     An  issue  of  fact  arises: 

1.  Upon  a  plea  of  not  guilty;  or, 

2.  Upon  a  plea  of  a  former  conviction  or  acquittal  of  the 
same  offense.     (Sec.  292,  C.  Cr.  Proc.) 

[Sec.  8123,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  a  third  basis  of 
an  issue  forms  a  third  subdivision  of  the  sectiou,  as  follows:  "3.  Upon  a 
plea  of  once  in  jeopardy."     (As  am'd  Rev.  Com'rs.)] 

Levisee,  p.  1317. 

When  Plea  of  Not  Guilty  May  be  'Withdrawn— Discretion— Sub- 
stantial Error.  It  is  within  the  discretion  of  trial  court  to  allow  a  plea  of 
not  gulty  to  be  withdrawn  in  order  to  move  to  set  aside  the  indictment  upon 
grounds  which,  if  established,  would  be  fatal  to  verdict.     State  v.  Van  Nice, 

. . . .  S.  D ,  63  N.  W.  537;  Richards  v.  State,  82  Wis.  172,   51  N.  W.  652; 

Adams  v.  State  (Fla.),  10  South.  106;  Savage  v.  State,  18  Fla.  909;  State  v. 
Collyer,  17  NeV.  275,  30  Pac.  891;  Early  v.  Com.,  86  Va.  921,  11  S.  E.  795 
State  V.  Jones,  88  N.  C.  671;  Justice  v.  State,  17  Ind.  56;  State  v.  Hale,  44 
Iowa  96;  State  v.  Riffe,  10  W.  Va.  794;  People  v.  Villarino,  66  Cal.  228,  5 
Pac.  154.  But  where  the  refusal  to  exercise  such  discretion  results  in  sub- 
stantial injury  to  th^^ccused,  the  error  will  be  corrected  on  appeal.     State 

v.   Van  Nice,   supra;  Schaetzel  v.   City  of  Huron, S.  D. ,  60  N.  W. 

741;  Champion  v.  Com'rs,  5  Dak.  416,  41  N.  W.  739;  Tilton  v.  Beecher,  59 
N.  Y.  176;  Smith  v.  Dragert,  61  Wis.  222,  21  N.  W.  46;  Percival  v.  Perci- 
val,  124  N.  Y.  637,  26  N.  E.  540;  State  v.  Fuller  (N.  C),  19  S.  E.  797;  Elliott, 
App.  Proc.  605,  and  cases  cited. 

TRIAL  BY  JURY.  §  7320  Comp.  Laws.  Issues  of  fact  must 
be  tried  by  a  jury.     (Sec.  293,  C.  Or.  Proc.) 


352  CODE  OF  CRIMINAL  PROCEDURE. 

SAME— UNLESS  JURY  WAIVED.  §  8124  Rev.  Codes  N.  D. 
Issues  of  fact  must  be  tried  by  a  jury,  unless  a  trial  by  jury  is 
waived  in  criminal  cases  not  amounting  to  felony,  by  the  con- 
sent of  both  parties  expressed  in  open  court  and  entered  in  the 
minutes.     (As  am'd  Rev.  Com'rs.) 

Levisee,  p.  1317. 

DEFENDANT  PRESENT  AT  TRIAL,  IN  WHAT  CASES— REQUIRED 
WHEN.  §  7321  Comp.  Laws.  If  the  indictment  is  for  a  felony, 
the  defendant  must  be  personally  present  at  the  trial,  but  if  for  a 
misdemeanor  not  punishable  by  imprisonment,  the  trial  may  be 
had  in  the  absence  of  the  defendant;  if,  however,  his  presence 
is  necessary  for  the  purpose  of  identification,  the  court  may, 
upon  application  of  the  district  attorney,  by  an  order  or  war- 
rant, require  the  personal  attendance  of  the  defendant  at  the 
trial.     (Sec.  294,  C.  Cr.  Proc.) 

SAME.  §  8125  Rev.  Codes  N.  D.  If  the  information  or  in- 
dictment is  for  a  felony,*  the  defendant  must  be  personally  pres- 
ent at  the  trial;  but  if  it  is  for  a  misdemeanor,  the  trial  may  be 
had  in  the  absence  of  the  defendant;  if  his  presence  is  neces- 
sary for  any  purpose,  the  court  may,  upon  application  of  the 
state's  attorney  or  person  appointed  to  prosecute,  by  an  order 
or  warrant,  require  the  personal  attendance  of  the  defendant  at 
the  trial.     (As  am'd  Rev.  Com'rs.) 

Levisee,  p.  1317. 

Order  for  New  Information,  When  No  Part  of  Trial.  Where  an 
information  was  adjudged  defective  by  the  supreme  court  because  it  did  not 
state  that  the  prosecution  was  in  the  name  and  under  the^authority  of  the 
state,  and  the  case  was  reversed,  and  an  order  of  the  trial  court  permitted  a 
new  information  to  be  filed  curing  such  defect,  without  a  new  preliminary 
examination  of  accused,  the  making  of  such  order  is  no  part  of  the  trial, 
within  sec.  7321,  Comp.  Laws,  providing  that  defendant  must  be  personally 
present  at  the  trial  when  the  offense  is  felony,  and  it  is  therefore  not  neces- 
sary that  defendant  should  be  personally  present  when  such  order  is  made. 
State  V.  Hasledahl,  3  N.  D.  36,  53  N.  W.  430;  10  Am.  &  Eng.  Encyc.  of 
Law,  709,  note  1;  Id.,  536,  note  3;  Whar.  Cr.  PI.  sec.  87;  McGuire  v.  State, 
72  Am.  Dec.  124;  State  v.  McCarty,  54  Am.  Dec.  150;  State  v.  Creight,  2 
Am.  Dec.  656;  State  v.  Jones,  17  Am.  Dec.  483;  1  Bish.  Cr.  Proc,  sec.  661, 
662;  State  v.  Davidson,  2  Cold.  184;  Epps  v.  State  (Ind.  Sup.),  1  N.  E.  491- 
493;  Bos  well  v.  Com,,  20  Grat,  860.     Sanxe— Error  Without  Prejudice.     If 


FORMATION  OF  THE  TRIAL  JURY,  353 

the  notice  to  defendant  or  his  counsel  of  application  for  such  order  was 
necessary,  the  error,  if  any,  in  failing  to  give  such  notice,  was  error  with- 
out prejudice,  and  no  reversal  can  follow;  State  v,  Hasledahl,  supra;  Epps 
V.  State,  supra;  Boswell  v.  Com.,  supra. 

PREPARATION  FOR  TRIAL,  AFTER  PLEA.  §  8126  Rev.  Codes 
N.  D.  After  his  plea  the  defendant,  if  he  requests  it,  is  en- 
titled to  at  least  one  day  to  prepare  for  trial.  (Adopted 
through  Rev.  Com'rs. ) 


CHAPTER  XXVII. 

Chap.  7,  Title  7,  Code  Criminal  Procedure,  S.  D. 

Art.  7,  Chap.  9,  Code  Criminal  Procedure,  N.  D. 

formation  of  the  trial  jury. 

WHAT  JURORS  SERVE  IN  CRIMINAL  ACTIONS.  §  7322  Comp. 
Laws;  §  8127  Rev.  Codes  N.  D.  The  jurors  duly  drawn  and 
summoned  for  the  trial  of  civil  actions,  are  also  the  jurors  for 
the  trial  of  criminal  actions.     (Sec.  295,  C.  Cr.  Proc. ) 

Levisee,  p.  1317. 

See,  as  to  summoning  of  jurors,  generally,  sees.  443  to  445e,  Comp. 
Laws;  Rev.  Codes,  N.  D.,  sees.  441  to  459. 

Consult  following  section. 

TRIAL  JURIES,  HOW  FORMED.  §  7323  Comp.  Laws;  §  8128 
Rev.  Codes  N.  D.  Trial  juries  for  criminal  actions  may  also 
be  formed  in  the  same  manner  as  trial  juries  in  civil  actions. 
(Sec.  296,  C.  Cr.  Proc.)  . 

Levisee,  p.  1318. 

See,  as  to  formation  of  trial  jury  in  civil  actions,  chap.  2,  ante,  p. 
9,  et  seq. 

Consult  preceding  section,  and  following  sections. 

Listof  Grand  Jurors— Objection  to  Indictment — Withdrawal  of  Plea, 
Right  to,  to  Raise  Such  Objection — Discretion.    In  the  case  of  State  v.  Van 

Nice, S.  D ,  63  N.  W.  537,  the  question  of   the   insufficiency  of  an 

indictment,  on  the  ground  that  the  list  of  names  from  which  were  drawn 
the  names  of  the  persons  composing  the  grand  jury  finding  the  indictment, 
23— T  P 


354  CODE  OF  CRIMINAL  PROCEDURE. 

contained  less  than  the  two  hundred  names  required  by  article  6  of  chap.  8 
of  the  Comp.  Laws,  came  before  the  supreme  court;  and  it  was  held,  that  it 
was  error  for  the  trial  court  to  refuse  an  application  to  withdraw  the  plea 
of  not  guilty  for  the  purpose  of  moving  to  set  aside  the  indictment  on  said 
grounds;  that,  it  not  appearing  that  defendant  had  been  previously  held  to 
answer  the  action  of  a  grand  jury  by  an  examining  magistrate,  any  chal- 
lenge that  would  have  constituted  a  valid  objection  to  the  panel  was  avail- 
able on  a  motion  to  set  aside  the  indictment,  and  while  the  motion  should 
have  been  made  before  the  plea  was  entered,  it  was  clearly  within  the  dis- 
cretionary powers  of  the  court  to  allow  the  plea  of  not  guilty  to  be  with- 
drawn, in  the  interest  of  justice,  for  the  purpose  of  such  motion.  Citing 
Richards  v.  State,  82  Wis.  172,  51  N.  W.  652;  Adams  v.  Slate  (Fla.),  10 
South.  106;  Savage  v.  State,  18  Fla.  909;  State  v.  Collier,  17  Nev.  275,  30 
Pac.  891;  Early  v.  Oom.,  86  Va.  921,  11  S.  E.  795;  State  v.  Jones,  88  N.  C. 
671;  Justice  v.  State,  17  Ind.  56;  State  v.  Hale,  44  la.  96;  State  v.  Riffe,  10 
W.  Va.  794;  People  v.  Villarino,  66  Cal.  228,  5  Pac.  154.  It  was  further 
held,  that  a  refusal  to  exercise  such  discretionary  power  will  be  corrected 
on  appeal,  and  that  a  reversal  must  follow.     State  v.   Van   Nice,    supra; 

Schaetzel  v.   City  of  Huron, S.  D ,   60  N.    W.    741;  Champion  v. 

Com'rs,  5  Dak.  416,  41  N.  W.  739;  Tilton  v.  Beecher,  59  N.  Y.  176;  Smith  v. 
Dragert,  61  Wis.  222,  21  N.  W.  46;  Percival  v.  Percival,  124  N.  Y.  637,  26 
N.  E.  640;  State  v.  Fuller  (N.  C),  19  S.  E.  797;  Elliott  App.  Proc.  605  and 
cases  there  cited. 

CLERK  PREPARES  BALLOTS— FOLDING— DEPOS/T/NG.  §  7324 
Comp.  Laws;  §  8129  Rev.  Codes  N.  D.  At  the  opening  of  the 
court  the  clerk  must  prepare  separate  ballots,  containing  the 
names  of  the  persons  returned  as  jurors,  which  must  be  folded 
as  nearly  alike  as  possible,  and  so  that  the  same  cannot  be  seen, 
and  must  deposit  them  in  a  sufficient  box.  (Sec.  297,  C.  Cr. 
Proc. ) 

Levisee,  p.  1318. 

Consult  sees.  7326  to  7329,  and  7331,  Comp.  Laws;  sees  8131  to  8134,  and 
8136,  Rev.  Codes,  infra. 

Consult  also,  Territory  v.  O'Hare,  1  N.  D.  30,  44  N.  W.  1003,  cited  un- 
der sec.  7326,  Comp.  Laws,  sec.  8131,  Rev.  Codes,  infra. 

NAMES  OF  ALL  MAY  BE  CALLED— ATTACHMENT  FOR  ABSENT 
JURORS.  §  7325  Comp.  Laws;  §  8130  Rev.  Codes  N.  D.  When 
the  case  is  called  for  trial,  and  before  drawing  the  jury,  either 
party  naay  require  the  names  of  all  the  jurors  in  the  panel  to  be 
called,  and  the  court  in  its  discretion  may  order  that  an  attache 


t^ORMATION  OF  THE  TRIAL  JURY.  355 

ment  issue  against  those  who  are  absent;  but  the  court  may,  in 
its  discretion,  wait  or  not  for  the  return  of  the  attachment. 
(Sec.  298,  C.  Cr.  Proc.) 

Levisee,  p.  1318. 

Consult  sees.  7329.  7330,  Comp.  Laws;  sees.  8134,  8135,  Rev.  Codes,  in- 
fra. 

MANNER  OF  DRAWING  JURY— BOX  SHAKEN— DRAWING  BAL- 
LOTS. §  7326  Comp.  Laws;  §  8131  Rev.  Codes  N.  D.  Before 
the  name  of  any  juror  is  drawn,  the  box  must  be  closed  and 
shaken,  so  as  to  intermingle  the  ballots  therein.  The  clerk 
must  then,  without  looking  at  the  ballots,  draw  them  from  the 
box.     (Sec.  299,  C.  Cr.  Proc.) 

Levisee,  p.  1318. 

Consult  sec.  7324,  Comp.  Laws;  sec.  8129,  Rev.  Codes,  supra;  see.  7332, 
Comp.  Laws,  sec.  8137,  Rev.  Codes,  infra. 

Calling  Names  From  last  Not  in  Box — Error.  Where  the  clerk  of 
the  district  court  in  calling  names  for  a  trial  jury,  did  not  obtain  the  names 
from  any  jury-box,  and  did  not  use  either  a  jury-box  or  ballots  in  calling  the 
jury,  but  called  off  the  names  of  those  who  served  as  jurors  from  a  list  of 
names  before  him,  hdd,  error.  Waiver  of  Such  Error.  Held,  further, 
that  had  the  attention  of  the  trial  court  been  called  to  such  irregularitj'  be- 
fore the  trial  began,  it  would  have  been  its  imperative  duty  to  have  prompt- 
ly dismissed  from  the  trial  panel  all  jurors  so  drawn.  But  where  in  a  crim- 
inal case,  such  irregularities  of  the  clerk  were  discovei'ed  by  defendant's 
counsel  while  they  were  going  on,  and  before  the  trial  began,  but  made  no 
objection,  but  on  the  contrary  kept  silent  until  after  verdict,  held,  the  ir- 
regularity was  waived.  Territory  v.  O'Hare,  1  N.  D.  30,  44  N.  W.  1003;  (as 
to  waiver)  Thomp.  &  M.  Juries,  sees.  278,  296  and  notes;  1  Thomp.  Trials, 
sec.  113  and  note  1,  p.  Ill;  Clough  v.  State,  7  Neb.  320;  U.  S.  v.  Gale,  109 
U.  S.  65,  3  Sup.  Ct.  1;  Thrall  v.  Smiley,  9  Cal.  529;  People  v.  Coffman,  24 
Cal.  230;  Com.  v.  Justices,  &c.,  5  Mass,  435;  Wilson  v.  People,  94  III.  299; 
Anarchists'  Case,  12  N.  E.  866;  State  v.  Elliott,  45  la.  486;  State  v.  Davis,  4l 
la.  311;  People  v.  McGungill,  41  Cal.  429.  Too  Late,  on  Motion  for  New 
Trial.  Held,  further,  that  it  was  too  late  to  take  advantage  of  such  irregu- 
larity upon  motion  for  a  new  trial,  where  defendant's  attorney  had  such  pre- 
vious knowledge  of  the  irregularity,  but  reserved  it  and  brings  it  before  the 
court  for  the  first  time,  by  affidavit,  upon  such  motion.  Territory  v.  O'Hare, 
supra;  People  v.  Roberts,  6  Cal.  215;  People  v.  Cljiing  Lit,  17  Cal.  321;  Peo- 
ple V.  Romero,  18  Cal.  89.  Held,  further,  that  such  irregularity  was  of  a 
character  which  might  be  waived  without  impairing  defendant's  right  of 
trial  by  jury.     Territory  v.  O'Hare,  supra;  Robinson  v.  Randall,  82  III.  522. 


356  CODE  OF  CRIMINAL  PROCEDURE. 

DISPOSITION  OF  BALLOTS  OF  NAMES  OF  SWORN  JURORS.  § 
7327  Comp.  Laws;  §  8132  Rev.  Codes  N.  D.  When  the  jury 
is  completed,  the  ballots  containing  the  names  of  the  jurors 
sworn  must  be  laid  aside  and  kept  apart  from  the  ballots  con- 
taining the  names  of  the  other  jurors,  until  the  jury  so  sworn 
is  discharged.     (Sec.  300,  C.  Cr.  Proc.) 

Levisee,  p.  1318. 

SAME— RETURN  OF,  TO  BOX,  WHEN.  §  7328  Comp.  Laws; 
§  8133  Rev.  Codes  N.  D.  After  the  jury  are  so  discharged,  the 
ballots  containing  their  names  must  be  again  folded  and  re- 
turned to  the  box,  and  so  on,  as  often  as  the  trial  is  had.  (Sec. 
301,  C.  Cr.  Proc.) 

Levisee,.  p.  1318. 

BALLOT  OF  ABSENT  JUROR,  DISPOSITION  OF  §  7329  Comp. 
Laws;  §  8134  Rev.  Codes  N.  D.  If  a  juror  be  absent  when  his 
name  is  drawn,  or  be  set  aside,  or  excused  from  serving  on  the 
trial,  the  ballot  containing  his  name  must  be  folded  and  re- 
turned to  the  box  as  soon  as  the  jury  is  sworn.  (Sec.  302,  C. 
Cr.  Proc.) 

Levisee,  p.  1318.  • 

Consult  next  section. 

ALL  JURORS  NOT  APPEARING— MORE  SUMMONED.  §  7330 
Comp.  Laws;  §  8135  Rev.  Codes  N.  D.  When  a  jury  has  been 
duly  summoned,  if,  upon  calling  the  cause  for  trial,  twenty-four 
of  the  jurors  summoned  do  not  appear,  the  court  may,  in  its 
discretion,  order  the  sheriff  to  summon  from  the  body  of  the 
county  or  subdivision,  as  many  persons  as  it  may  think  proper, 
at  least  sufficient  to  make  twenty-four  jurors,  from  whom  a 
jiiry  for  the  trial  of  the  cause  may  be  selected.  (Sec.  303,  C. 
Cr.  Proc. ) 

Levisee,  p.  1318. 

Consult  preceding  section;  sec.  7334,  Comp.  Laws,  sec.  8139,  Rev. 
Codes,  infra. 

NAMES  OF  NEW  JURORS  PUT  IN  BOX— FOLDING  OF  BALLOTS. 
§  7331  Comp.  Laws;  *§  8136  Rev.  Codes  N.  D.  The  names  of 
the  persons  summoned  to  complete  the  jury  must  be  written  on 
distinct  pieces  of  paper,  folded  each  as  nearly  alike  as  possible, 


FORMATION  OF  THE  JURY  TRIAL,  357 

and  so  that  the  name  cannot  be  seen,  and  must  be  deposited  in 
the  box  mentioned  in  section  7324.     (Sec.  304,  C.  Cr.  Proc. ) 

[In  sec.  8136,  Rev.  Codes,  N.  D.,  for  "7324,"  read  ''8129. "J 
Levisee,  p.  1318. 

Consult  sec.  7324,  Comp.  Laws,  sec.  8129,  Rev.  Codes,  supra. 
Consult  also,  Territory  v.  O'Hare,  cited  under  sec.    7326,   Comp.  Laws, 
sec.  8131,  Rev.  Codes,  supra. 

DRAWING  THE  JURY,  COURT  DIRECTS.  §  7332  Comp.  Laws; 
§  bl37  Rev.  Codes  N.  D.  The  clerk  must  thereupon,  under  the 
direction  of  the  court,  publicly  draw  out  of  the  box  so  many  of 
the  ballots,  one  after  another,  as  are  sufficient  to  form  the  jury. 
(Sec.  305,  C.  Cr.  Proc. ) 

Levisee,  p.  1318. 

Consult  sec.  7326,  Comp.  Laws,  sec.  8131,  Rev.  Codes,  supra:,  also,  Ter- 
ritory V.  O'Hare,  cited  under  sec.  7326,  Comp.  Laws,  sec.  8131,  Rev. 
Codes,  supra. 

JURY  OF  TWELVE— SWEARING  OF.  §  7333  Com.  Laws';  § 
8138  Rev.  Codes  N.  D.  The  jury  consists  of  twelve  men, 
chosen  as  prescribed  by  law,  and  sworn  or  affirmed  well  and 
truly  to  try  and  true  deliverance  to  make  between  the  state  of 
South  Dakota  (or  North  Dakota)  and  the  defendant  whom  they 
shall  have  in  charge,  and  a  true  verdict  to  give  according  to 
the  evidence,  which  verdi^  must  be  unanimous.  (Sec.  306, 
C.  Cr.  Proc. ) 

Levisee,  p.  I3I9. 

As  to  right  of  jury  trial  in  civil  cases,  see  sec.  5032,  Comp.  Laws,  sec. 
5420,  Rev.  Codes,  N.  D.,  chap.  1,  ante,  pp.  3-4. 

Sec.  6,  art.  6,  Constitution  of  South  Dakota,  is  as  follows: 

The  right  of  trial  by  jury  shall  remain  inviolate,  and  shall  extend  to 
all  cases  at  law  without  regard  to  the  amount  in  controversy,  but  the  legis- 
lature may  provide  for  a  jury  of  less  than  twelve  in  any  court  not  a  court  of 
record,  and  for  the  decision  of  civil  cases  by  three-fourths  of  the  jury  in 
any  court. 

The  corresponding  provisions  of  the  North  Dakota  constitution  is  as 
follows  : 

Sec.  7.  The  right  to  trial  by  jury  shall  be  secured  to  all,  and  remain 
inviolate;  but  a  jury  in  civil  cases,  in  courts  not  of  record,  may  consist  of 
less  than  twelve  men,  as  may  be  prescribed  by  law. 

Action  for  Municipal  penalty,  not  Criminal.     An  action  to  recover  a 
penalty  prescribed  by  a  municipal  ordinance  on  account  of  an  act  not  crimi- 


358  CODE  OP  CRIMINAL  PROCEDURE. 

nal  by  the  general  law  of  the  8tat«,  but  forbidden  by  such  ordinances,  is  a 
civil,  and  not  a  criminal  action.  City  of  Huron  v.  Carter,  5  S.  D.  4,  67  N. 
W.  947;  1  Dill.  Mun.  Corp.  (4th  Ed.),  sec.  432;  Town  of  Brookville  v.  Gagle, 
73  Ind.  117;  Ex  parte  Hollwedell,  74  Mo.  395;  City  of  Oshkosh  v.  Schwartz, 
(Wis.),  13  N.  W.  552;  Miller  v.  O'Reilly,  84  Ind.  168;  Jenkins  v.  City  of 
Cheyenne,  1  Wyo.  287.  Contempt  Proceedings — Defendant  not  Entitled 
to  Jury,  In  contempt  proceedings  under  sec.  13,  chap.  110,  laws  1890,  being 
the  "Prohibitory  Law,"  the  party  charged  with  the  contempt  is  not  entitled 

to  have  the  charge   tried  to  a  jury.     State  v.    Markuson, N.  D ,64 

N.  W,  934;  Ex  Parte  Grace,  12  la.  208;  Neel  v.  State,  9  Ark.  259;  State  v. 
Matthews,  37  N.  H.  450;  Ex  parte  Terry,  128  U.  S.  289,  9  Sup.  Ct.  77;  Eilen- 
becker  v.  District  Court,  134,  U.  S.  31,  10  Sup.  Ct.  424. 

NUMBER  FAILING,  MORE  SUMMONED,  FROM  TIME  TO  TIME.  § 
7334  Comp.  Laws;  §  8139  Rev.  Codes  N.  D.  If  a  sufficient 
number  cannot  be  obtained  from  the  box  to  form  a  jury,  the 
court  may,  as  often  as  is  necessary,  order  the  sheriff  to  sum- 
mon from  the  body  of  the  county  or  subdivision,  so  many  per- 
sons qualified  to  serve  as  jurors  as  it  deems  sufficient  to  form  a 
jury.  The  jurors  so  summoned  may  be  called  from  the  list  re- 
turned by  the  sheriff,  and  so  many  of  them  not  excused  or  dis- 
charged, as  may  be  necessary  to  complete  the  jury,  must  be  im- 
paneled and  sworn.     (Sec.  307,  C.  Cr.  Proc. ) 

Levisee,  p.  1319. 

Consult  sec.  7330,  Comp.  Laws;  sec.  81*5,  Rev.  Codes,  supra. 

JUROR  MAY  AFFIRM,  WHEN.  §  7335  Comp.  Laws;  §  8140 
Rev.  Codes  N.  D.  Any  juror  who  is  conscientiously  scrupu- 
lous of  taking  the  oath  above  described,  shall  be  allowed  to 
make  affirmation,  substituting  for  the  words  "so  help  you  God,'' 
at  the  end  of  the  oath,  the  following:  *  'This  you  do  affirm  un- 
der the  pains  and  penalties  of  perjury."  (Sec.  308,  C.  Cr. 
Proc. ) 

Levisee,  p.  1319. 


CHAPTER  XXVIII. 

Chap.  1,  Title  8,  Code  Criminal  Procedure,  S.  D. 
Art.  1,  Chap.  10,  Code  Criminal  Procedure,  N.  D. 


CHALLENGING  THE  JURY.  359 

CHALLENGING  THE  JURY. 

CHALLENGES  CLASSED.  §  7337  Comp.  Laws;  §  8142  Rev. 
Codes  N.  D.  A  challenge  is  an  objection  made  to  the  trial  jur- 
ors and  is  of  two  kinds: 

1.  To  the  panel. 

2.  To  an  individual  juror.     (Sec.  310,  C.  Cr.  Proc.) 
Levisee,  p.  1820. 

SEVERAL  DEFENDANTS,  MUST  JOIN  IN  CHALLENGES.  §  7338 
Comp.  Laws;  §  8143  Rev.  Codes  N.  D.  When  several  defend- 
ants are  tried  together  they  cannot  sever  their  challenges,  but 
must  join  therein.     (Sec.  311,  C.  Cr.  Proc.) 

Levisee,  p.  1320. 

PANEL  DEFINED.  §  7339  Comp.  Laws;  §  8144  Rev.  Codes 
N.  D.  The  panel  is  a  list  of  jurors  returned  by  a  sheriff,  to 
serve  at  a  particular  court,  or  for  the  trial  of  a  particular  ac- 
tion.    (Sec.  312,  C.  Cr.  Proc.) 

Levisee,  p.  1320. 

Consult  next  three  sections. 

CHALLENGE  TO  PANEL,  DEFINED.  §  7340  Comp.  Laws;  § 
8^145  Rev.  Codes  N.  D.  A  challenge  to  the  panel  is  an  objec- 
tion made  to  all  the  trial  jurors  returned,  and  may  be  taken  by 
either  party.     (Sec.  313,  C.  Cr.  Proc.) 

Levisee,  p.  1320. 

Consult  next,  and  preceding  section. 

GROUNDS  FOR  CHALLENGE  TO  PANEL  §  7341  Comp.  Laws; 
§  8146  Rev.  Codes  N.  D.  A  challenge  to  the  panel  can  be 
founded  only  on  a  material  departure  from  the  forms  prescribed 
by  law,  in  respect  to  the  drawing  and  return  of  the  jury,  or  on 
the  intentional  omission  of  the  sheriff  to  summon  one  or  more 
of  the  jurors  drawn.     (Sec.  314,  C.  Cr.  Proc.) 

Levisee,  p.  1320. 

Consult  two  preceding  sections,  the  next  section,  and  sec.  7347,  Comp. 
Laws,  sec.  8152,  Rev.  ('odes,  infra. 

Consult  State  v.  Kent,  4  N.  D.  577,  62  N.  W.  631,  as  to  bias  of  sheriff  in 
summoning  special  jury,  cited  under  sec.  7317,  Comp.  Laws,  sec.  8152,  Rev. 
Codes,  infra. 

WHEN  SUCH  CHALLENGE  TAKEN.  §  7342  Comp.  Laws;  § 
8147  Rev.  Codes  N.  D.     A  challenge  to  the  panel  must  be  taken 


360  CODE  OF  CRIMINAL  PROCEDURE. 

before  a  juror  is  sworn,  and  must  be  in  writing,  specifying 
plainly  and  distinctly  the  facts  constituting  the  ground  of  chal- 
lenge.    (Sec.  315,  C.  Cr.  Proc.) 

Levisee,  p.  1321. 

Consult  two  preceding  sections. 

See  Territory  v.  O'Hare,  1  N.  D.  30,  44  N.  W.  1003,  cited  under  sec, 
7349,  Comp,  Laws,  sec.  8154,  Rev.  Codes,  infra. 

SUFFICIENCY  OF  GROUNDS  OF  CHALLENGE,  COURT  TRIES- 
EXCEPTION.  §  7343  Comp.  Laws;  §  8148  Rev.  Codes  N.  D.  If 
the  sufficiency  of  the  facts  alleged  as  a  ground  of  challenge  be 
denied,  the  adverse  party  may  except  to  the  challenge.  The 
exception  need  not  be  in  writing,  but  must  be  entered  upon  the 
minutes  of  the  court,  and  thereupon  the  court  must  proceed  to 
try  the  sufficiency  of  the  challenge,  assuming  the  facts  alleged 
therein  to  be  true.     (Sec.  316,  C.  Cr.  Proc.) 

Sec.  8148,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  in  lieu  of  the 
words  "be  denied,  the  adverse  party,"  the  words  "is  controverted  by  the 
adverse  party,  he"  are  substituted.     (As  am'd  Rev.  Comers.)  ] 

Levisee,  p.  1321. 

Consult  preceding  section,  and  next  two  sections. 

CHALLENGE  HELD  SUFFICIENT— WITHDRAWING  EXCEPTION^ 
FACTS  DENIED— AMENDMENT  §  7344  Comp.  Laws;  §  8149  Rev. 
Codes  N.  D.  If,  on  the  exception,  the  court  deem  the  chal- 
lenge sufficient,  it  may,  if  justice  require  it,  permit  the  party 
excepting  to  withdraw  his  exception,  and  to  deny  the  facts  al- 
leged in  the  challenge.  If  the  exception  be  allowed,  the  court 
may,  in  like  manner,  permit  an  amendment  of  the  challenge. 
(Sec.  317,  C.  Cr.  Proc.) 

Levisee,  p.  1321. 

Consult  two  preceding  sections,  and  next  section. 

ORAL  DENIAL  OF  CHALLENGE— ENTRY  OF— FACT  TRIED.  §  7345 
Comp.  Laws;  §  8150  Rev.  Codes  N.  D.  If  the  challenge  is  de- 
nied, the  denial  may,  in  like  manner,  be  oral,  and  must  be  en- 
tered upon  the  minutes  of  the  court,  and  the  court  must  pro- 
ceed to  try  the  question   of  fact.     (Sec.   318,  C.  Cr.   Proc.) 

[Sec.  8150,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  in  lieu  of  the 
words  "challenge  is,"  the  words  "facts  alleged  as  the  grounds  of"  are  sub- 
stituted.   (As  am'd  Rev,  Com'rs.)! 


CHALLENGING  THE  JURY.  S61 

Levisee,  p.  1321. 

Consult  two  preceding  sections,  and  next  section. 

WHO  EXAMINED  ON  TRIAL  OF  CHALLENGE.  §  7346  Comp. 
Laws;  §  8151  Rev.  Codes  N.  D.  Upon  the  trial  of  the  chal- 
lenge, the  officers,  whether  judicial  or  ministerial,  whose  irreg- 
ularity is  complained  of,  as  well  as  any  other  persons,  may  be 
examined  to  prove  or  disprove  the  facts  alleged  as  the  ground 
of  the  challenge.     (Sec.  319,  C.  Cr.  Proc.)    ■ 

Levisee,  p.  1321. 

Consult  preceding  section. 

BIAS  OF  OFFICER— WHEN  CHALLENGE  FOR,  GOOD— PROCED- 
URE. §  7347  Comp.  Laws;  §  8152  Rev.  Codes  N.  D.  When 
the  panel  is  formed  from  persons  whose  names  are  not  drawn 
as  jurors,  a  challenge  may  be  taken  to  the  panel  on  account  of 
any  bias  of  the  officer  who  summoned  them,  which  would  be 
good  ground  of  challenge  to  a  juror.  Such  challenge  must  be 
made  in  the  same  form,  and  determined  in  the  same  manner  as 
if  made  to  a  juror.     (Sec.  320,  C.  Cr.  Proc.) 

Levisee,  p.  1321. 

Consult    sec.  7341,    Comp.    Laws;   sec.  8146,  Rev.  Codes,  supra. 

Bias  of  SheriflF,  Summoning'  Jury,  Test  of.  Where  a  challenge 
was  interposed  to  the  panel  of  the  special  jury  summoned  by  the  sherifTun- 
der  a  special  venire  issued  after  the  regular  panel  had  been  exhausted,  on 
the  ground  of  the  bias  of  the  sheriff,  the  test  of  the  sheriff's  qualification  to 
summon  such  special  jury  is  whether  he  will  be  qualified  to  sit  as  a  juror  in 
the  case.  It  has  been  so  held  in  California  under  a  statute  the  same  as  sec. 
7347,  Comp.  Laws;  State  v.  Kent,  4  N.  D.  577,  62  N.  W.  631;  People  v. 
Coyodo,  40  Cal.  592;  People  v.  Welsh,  49  Cal.  174.  On  his  examination  un- 
der this  challenge  the  sheriff  testified  that  he  had  expressed  to  others  his 
opinion  that  the  accused  was  guilty,  and  it  is  apparent  that  his  opinion  was 
very  strong.  It  would  seem  that  it  was  derived  from  statements  made  to 
him  by  the  accomplice  of  defendant.  If  so,  it  is  very  doubtful  whether  the 
sheriff  would  have  been  competent  as  a  juror  in  the  case,  notwithstanding 
he  testified  that,  if  summoned  as  a  juror,  he  would  give  accused  a  fair  and  im- 
partial trial  according  to  the  law  and  the  evidence.  State  v.  Kent,  supra; 
Greenfield  v.  People,  74  N.  Y.  277;  Jackson  v.  Co.,  23  Grat.  919;  Armistead 
V.  Com..  11  Leigh,  657;  Black  v.  State,  42  Tex.  378;  Goodwin  v.  Blachley, 
4  Ind.  438;  Frazier  v.  State,  23  Ohio  St.  551;  Woods  v.  State  (Ind.  Sup.),  33 
N.  E.  901;  People  v.  Wells  (Cal.),  34  Pac.  718;  Walker  v.  State,  102  Ind. 
502,  1  N.  E.  856;  Comp.  Laws,  sec.  7361. 
23i— T  P 


362  CODE  OF  CRIMINAL  PROCEDURE. 

ALLOWANCE  OF  CHALLENGE,  JURY  DISCHARGED-NEW  JURY- 
DISALLOWANCE,  JURY  IMPANELED.  §  7348  Comp.  Laws;  §  8153 
Rev.  Codes  N.  D.  If,  upon  an  exception  to  the  challenge,  or  a  de- 
nial of  the  facts,  the  challenge  be  allowed,  the  court  must  dis- 
charge the  jury,  and  another  jury  can  be  summoned  for  the 
same  term  forthwith  from  the  body  of  the  county  or  subdivis- 
ion; or  the  judge  may  order  a  jury  to  be  drawn  and  summoned 
in  the  regular  manner.  If  it  be  disallowed,  the  court  must  di- 
rect the  jury    to  be   impaneled.     (Sec.    321^   C.    Cr.    Proc.) 

[Sec.  8153,  Rev.  Codes,  N.  D.,  is  the  same  except  that  the  words  "or 
subdivision"  are  omitted,] 

Levisee,  p.  1321. 

CHALLENGE  TO  INDIVIDUAL  JUROR,  WHEN  MADE.  §  7349 
Comp.  Laws;  sec.  8154  Rev.  Codes  N.  D.  Before  a  juror  is 
called,  the  defendant  must  be  informed  by  the  court,  or  under 
its  direction,  that  if  he  intend  to  challenge  an  individual  juror, 
he  must  do  so  when  the  juror  appears,  and  before  he  is  sworn. 
(Sec.  322,  C.  Cr.Proc.) 

Levisee,  p.  1321. 

Consult  next  two  sections. 

Exhausting  All  Challenges  as  Jurors  Appear — No  Error.  In  a 
criminal  case,  where  the  jury  was  called  and  sworn  singly,  without  calling 
twelve  jurors  into  the  box,  and  where  the  parties  were  requiried  to  exhaust 
all  challenges  to  individual  jurors  as  each  juror  appeared,  and  before  pro- 
ceeding further  with  the  call,  held,  not  error.  Territory  v.  O'Hare,  1  N. 
D.  30,  44  N.  N.  1003;  State  vs.  Armington,  25  Minn.  29;  State  v.  Brown,  12 
Minn.  538  (Gil.  448).  Calling  Names,  Not  From  Box,  But  From  List— Er- 
ror— Waiver.  Where  the  clerk  in  calling  names  for  a  trial  jury  did  not 
obtain  names  from  any  jury-box,  nor  use  such  box,  or  ballots,  in  calling  a 
jury,  but  called  off  the  names  from  a  list  before  him,  held,  error.  Held, 
further,  that  had  the  attention  of  the  trial  court  been  called  to  such  irregu- 
larity before  the  trial  began,  its  duty  would  have  been  to  have  dismii>sed 
from  the  trial  panel  all  jurors  so  drawn.  But  where,  in  a  criminal  case, 
such  irregularities  were  discovered  by  defendant's  counsel  while  they  were 
going  on,  and  before  the  trial  began,  but  no  objection  was  made,  but  he 
kept  silent  until  after  verdict,  held,  the  irregularity  was  waived.  Territory 
V.  O'Hare,  1  N.  D.  30,  44  N.  W.  1003;  (as  to  waiver)  Thomp.  &  M.,  Juries, 
sec.  278,  296,  and  notes;  1  Thomp.  Tr.,  sec.  113,  and  note  1,  p.  Ill;  Clough 
V.  State,  7  Neb.  320;  U.  S.  v.  Gale,  109  U.  S.  65,  3  Sup.  Ct.  1;  Thrall  v.  Smi- 
ley, 9  Cal.   529;  People  v.   Cofifman,  24  Cal.   230;  Com.  v.  Justices,  etc.,  5 


CHALLENGING  THE  JURY.  36^ 

Mass.  435.  Same— Too  Late,  On  Motion  for  New  TriaL  Such  irregu- 
larities cannot  be  raised  for  the  first  time  on  motion  for  new  trial.  Terri- 
tory V.  O'Hare,  supra\  People  v.  Roberts,  6  Cal.  215;  People  v.  Chung  Lit. 
17  Cal.  321;  People  v.  Romero,  18  Cal.  89.  Bight  of  Jury  Trial,  Unim- 
paired By.  Such  irregularity  might  be  waived  without  impairing  defend- 
ants right  to  trial  by  jury.  Territory  v.  O'Hare,  supra;  Robinson  v.  Ran- 
dall, 82  111.  522;  Wilson  v.  People,  94  111.  299;  Anarchists'  Case,  (111.)  12  N. 
E.  866;  State  v.  Elliott,  45  Iowa,  486;  State  v.  Davis,  41  Iowa,  311;  People 
V.  McGungill,  41  Cal.  429. 

Order  of  Making  Challenges,  Not  Important,  When— Unused 
Challenges.  Whether  the  order  in  which  the  peremptory  challenges  were 
m  ade  under  direction  of  the  court  was  exactly  that  contemplated  by  statute  is 
not  of  controlling  importance,  or  available  to  defendant  as  error,  where  the 
record  expressly  shows  that  he  accepted  the  jury  with  a  large  number  of  his 

peremptory  challenges  unused.     State  v.  Reddington, S.  D ,  64  N. 

W.  170;  Erwin  v.  State,  29  O.  St.  186;  State  v.  Lawler,  28  Minn.  216,  9  N. 
W.  698;  Wilson  v.  People,  94  111.  299;  State  v.  Davis,  41  Iowa  311;  State  v. 
Hoyt,  47  Conn.  518;  People  v.  McGungill,  41  Cal.  429;  State  v.  Gaffney,  56 
Vt.  45  L 

Consult,  also.  State  v.  Chapman  et  al,  1  S.  D,  414,  47  N.  W.  411,  cited 
under  sec.  7358,  Comp.  Laws,  sec.  8163,  Rev.  Codes,  infra. 

NATURE  OF  SUCH  CHALLENGE.  §  7350  Comp.  Laws;  §  8155 
Rev.  Codes  N.  D.     A  challenge  to  an  individual  juror  is  either: 

1.  Peremptory;  or, 

2.  For  Cause. 

(Sec.  323,  C.  Cr.  Proc.) 

Levisee,  p.  1321. 

Consult  preceding,  and  next  two  sections. 

See  decisions  under  preceding  section. 

TAKEN  BEFORE  SWORN— WHEN  OTHERWISE.  §  7351  Comp. 
Laws;  §  8156  Rev.  Codes  N.  D.  It  must  be  taken  when  the 
juror  appears,  and  before  he  is  sworn;  but  the  court  may,  for 
good  cause,  permit  it  to  be  taken  after  the  juror  is  sworn,  and 
before  the  jury  is  completed.     (Sec.  324,  C.  Cr.  Proc.) 

Levisee,  p.  1322. 

Consult  sec.  7349,  Comp.  Laws;  sec.  8164,  Rev.  Codes,  supra. 

See  State  V.  Reddington, S.  D ,64  N.   W.  170,   cited  under 

sec.  7349,  Comp.  Laws,  sec.  8154,  Rev.  Codes,  supra,  as  to  order  of  making 
peremptory  challenges;  and  Territory  v.  O'Hare,  1  N.  D.  30,  44  N.  W.  1003, 
upon  same  head,  cited  under  same  section. 


364  CODE  OF  CRIMINAL  PROCEDURE. 

PEREMPTORY  CHALLENGE,  ORAL— DEFINED.  §  7352  Comp. 
Laws;  §  8157  Rev.  Codes  N.  D.  A  peremptory  challenge  can 
be  taken  by  either  party,  and  may  be  oral.  It  is  an  objection 
to  a  juror  for  which  no.  reason  need  be  given,  but  upon  which 
the  court  must  exclude  him.     (Sec.  325,  C  Cr,  Proc.) 

Levisee,  p.  1322. 

Consult  next  two  sections. 

Sick  Juror,  Discharge  of — Trial  Anew,  What  Challenges,  On.  On 
trial  of  a  criminal  case,  where  a  juror  becomes  sick  and  unable  to  s^it  in  the 
case  before  the  case  is  submitted  to  the  jury,  he  may  be  ordered  discharged 
and  a  new  juror  sworn  to  complete  the  panel,  and  the  trial  ordered  begun 
.anew;  or  the  entire  jury  may  be  discharged,  and  then,  or  subsequently  an- 
other may  be  empaneled  to  try  the  case;  and  when  the  course  first  above 
outlined  is  pursued,  the  prisoner  is  not  thereby  entitled  to  again  exercise  all 
the  peremptory  challenges  given  him  by  statute,  or  to  peremptorily  chal- 
lenge any  one  of  the  remaining  11  jurors;  and  in  procuring  the  new  jury  de- 
fendant may  exercise  only  such  of  his  peremptory  challenges  as  he  has  not 
already  exhausted  in  procuring  the  other  11  jurors.  State  v.  Hasledahl,  2 
N.  D.  521,  52  N.  W.  315;  Whar.  Cr.  PI.  &  Pr.,  note  to  sec.  508;  Jenks  v. 
State,  39  Ind.  9;  People  v.  Stewart,  64  Cal.  60,  28  Pac.  112;  People  v.  Brady, 
72  Cal.  490,  14  Pac.  202;  Territory  v.  O'Hare,  1  N.  D.  30,  44  N.  W.  1003. 

DEFENDANTS  PEREMPTORY  CHALLENGES,  NUMBER  OF  §7353 
Comp.  Laws;  §  8158  Rev.  Codes  N.  D.  In  all  criminal  cases 
the  defendant  is  entitled  to  the  following  challenges: 

1.  For  capital  offenses  the  defendant  may  challenge  per- 
emptorily twenty  jurors. 

2.  In  prosecutions  for  offenses  punishable  by  imprison- 
ment in  the  state  prison,  ten  jurors. 

3.  In  other  prosecutions,  three  jurors.  (Sec.  326,  C.  Cr. 
Proc.) 

[Sec.  8158,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  word 
"twenty"  in  subdivision  1  is  substituted  by  the  word  "twenty-five,"  and  the 
word  "ten"  in  subdivision  2  is  substituted  by  the  word  "fifteen;"  and  the 
word  "three"  in  subdivision  3  is  substituted  by  the  word  "ten."  (Am'd  Rev. 
Com'rs.)] 

Levisee,  p.  1322. 

Consult  preceding,  and  next  section. 

Discharging  Chosen  Juror,  Selecting  Substitute — Additional  Chal- 
lenges— No  Error.  The  trial  court,  after  nine  jurors  had  been  selected, 
adjourned  until  next  morning,  one  of  the  jurors  chosen  failing  to  appear, 


CHALLENGING   THE   JURY.  365 

and  said  juror  was  discharged  and  another  one  ordered  selected  in  his  stead, 
defendant  being  given  three  additional  challenges,  none  of  which  were  used. 
The  absent  juror  came  into  court  after  trial  was  commenced.  Held,  that, 
no  prejudice  being  claimed,  the  error  in  discharging  the  absent  juror  was 
not  reversible  error,  no  objection  being  urged  against  the  substituted  juror. 

State  V.  La  Croix,  . . . .  S.  D ,  66  N.  W.  944;  People  v.  Barker,  60  Mich. 

277;  People  v,  Arceo,  32  Cal.  40;  State  v.  Davis,  7  So.  24. 

See,  also,  State  v.  Reddington, S.  D ,  64  N.  W.  170,  cited  un- 
der sec.  7349,  Com  p.  Laws,  sec.  8154,  Rev.  Codes,  supra. 

STATE'S  CHALLENGES,  NUMBER  OF.  §  7354  Comp.  Laws;  § 
8159  Rev.  Codes  N.  D.  The  prose'^uting  attorney  in  capital 
cases  may  challenge  peremptorily  six  jurors;  in  other  cases 
three  jurors.     (Sec.  327,  C.  Cr.  Proc. ) 

Levisee,  p.  1322. 

Consult  two  preceding  sections. 

CHALLENGE  FOR  CAUSE,  BY  EITHER  PARTY.  §  7355  Comp. 
Laws;  §  8160  Rev.  Codes  ISI.  D.  A  challenge  for  cause  may  be 
taken  either  by  the  state  or  the  defendant.  (Sec.  328,  C.  Cr, 
Proc. ) 

Levisee,  p.  1322. 

Consult  next  three  sections. 

FOR  CAUSE,  CLASSED.  §  7356  Comp.  Laws;  §  8161  Rev. 
Codes  N.  D.  It  is  an  objection  to  a  particular  juror,  and  is 
either: 

1.  General,  that  the  juror  is  disqualified  from  serving  in 
any  case  on  trial;  or, 

2.  Particular,  that  he  is  disqualified  from  serving  in  the 
case  on  trial.     (Sec.  329,  C.  Cr.  Proc. ) 

[Sec.  8161,  Rev.  Codes,  N.  D.,  is  the  same,   except  that  in  lieu  of  the 
word  "on"  in  subdivision  1  the  word  "or"  is  used.] 
Levisee,  p.  1322. 
Consult  preceding  section,  and  next  two  sections. 

GENERAL  CAUSES  OF  CHALLENGES  SPECIFIED.  §  7375 
Comp.  Laws;  sec.  8162  Rev.  Codes  N.  D,  General  causes  of 
challenges  are: 

1.  A  conviction  for  felony. 

2.  A  want  of  any  of  the  qualifications  prescribed  by  law,  to 
render  a  person  a  competent  juror,  including  a  want  of  knowl- 
edge of  the  English  language  as  used  in  the  courts. 


366  CODE  OF  CRIMINAL  PROCEDURE. 

3.  Unsoundness  of  mind,  or  such  defect  in  the  faculties 
of  the  mind  or  organs  of  the  body  as  renders  him  incapable  of 
performing  the  duties  of  a  juror.     (Sec.  330,  C.  Cr.  Proc. ) 

Levisee,  p.  1322. 

Consult  two  preceding  sections,  and  next  section. 

PARTICULAR  CAUSES  OF  CHALLENGES  SPECIFIED.  §  7358 
Comp.  Laws;  sec.  8163  Rev.  Codes  N.  D.  Particular  causes  of 
challenges  are  of  two  kinds: 

1.  For  such  a  bias  as  when  the  existence  of  the  facts  is  as- 
certained, in  judgment  of  law  disqualifies  the  juror,  and  which 
is  known  in  this  code  as  implied  bias. 

2.  For  the  existence  of  a  state  of  mind  on  the  part  of  the 
juror,  in  reference  to  the  case,  or  to  either  party,  which  satis- 
fies the  court,  in  the  exercise  of  a  sound  discretion,  that  he 
cannot  try  the  issue  impartially,  without  prejudice  to  the  sub- 
stantial rights  of  the  party  challenging,  and  which  is  known 
in  this  code  as  actual  bias.  ,(Sec.  331,  C.  Cr.  Proc.) 

Levisee,  p.  1322. 

Consult  three  preceding  sections. 

Examination    of    Juror — No     Fixed  Rules — Discretion — Latitude. 

The  extent  to  which  a  party  should  be  allowed  to  go  on  examination 
of  a  person  called  as  a  juror,  is  not  and  cannot  well  be  governed  by  any 
fixed  rules.  Much  rests  in  the  discretion  of  the  court  as  to  what  questions 
may  or  may  not  be  answered;  but  in  practice  very  great  latitude  is  and 
generally  ought  to  be  indulged.  State  v.  Chapman  et  al,  1  S.  D.  414,  47  N. 
W.  411.  Bias  of  Jviror — Decision  On,  "When  Not  Reviewable — Error. 
The  decision  of  the  trial  judge  on  the  question  of  indifference  of  a  juror,  or 
for  actual  bias,  is  not  reviewable  in  this  court,  except  in  absence  of  any  evi- 
dence to  support  it,  in  which  case  it  is  an  error  of  law  to  which  an  excep- 
tion lies.     State  v.  Chapman  et  al,  1  S.  D.  414,  47  N.  W.  411. 

GROUNDS  OF  CHALLENGE  FOR  IMPLIED  BIAS,  SPECIFIED.  § 
7.359  Comp.  Laws;  §  8164  Rev.  Codes  N.  D.  A  challenge  for 
implied  bias  may  be  taken  for  all  or  any  of  the  following 
causes,  and  for  no  other: 

1.  Consanguinity  or  affinity  within  the  sixth  degree,  in- 
clusive, to  the  person  alleged  to  be  injured  by  the  offense 
charged,  or  on  whose  complaint  the  prosecution  was  instituted, 
or  to  the  defendant. 


CHALLENGING   THE   JURY.  367 

2.  Standing  in  the  relation  of  guardian  and  ward,  attorney 
and  client,  master  and  servant,  or  landlord  and  tenant,  or  be- 
ing a  member  of  the  family  of  the  defendant,  or  of  the  person 
alleged  to  be  injured  by  the  offense  charged,  or  on  whose  com 
plaint  the  prosecution  was  instituted,  or  in  his  employment  on 
wages. 

3.  Being  a  party  adverse  to  the  defendant  in  a  civil  ac- 
tion, or  having  complained  against,  or  been  accused  by  him  in 
a  criminal  prosecution. 

4.  Having  served  on  the  grand  jury  which  found  the  in- 
dictment, or  on  a  coroner's  jury  which  inquired  into  the  death 
of  a  person  whose  death  is  the  subject  of  the  indictment. 

5.  Having  served  on  a  trial  jury  which  has  tried  another 
person  for  the  offence  charged  in  the  indictment. 

6.  Having  been  one  of  a  jury  formerly  sworn  to  try  the 
indictment,  and  whose  verdict  was  set  aside,  or  which  was  dis- 
charged without  a  verdict,  after  the  cause  was  submitted 
to  it. 

7.  Having  served  as  a  juror  in  a  civil  action  brought 
against  the  defendant  for  the  act  charged  as  an  offense. 

8.  If  the  offense  charged  be  punishable  with  death,  the 
entertaining  of  such  conscientious  opinions  as  would  preclude 
his  finding  the  defendant  guilty,  in  which  case  he  shall  neither 
be  permitted  nor  compelled  to. serve  as  a  juror.  (Sec.  332,  C. 
Cr.  Proc.) 

[Sec.  8164,  Rev.  Codes,  N.  D.,  is  the  same,  except  that. 

In  subdivision  1,  in  lieu  of  the  words  "affinity  within  the  sixth  degree, 
inclusive,"  the  word  "relationship"  is  used;  and 

In  subdivision  2,  the  words  "or  debtor  and  creditor"  follow  the  word 
"tenant,"  and  in  lieu  of  the  words  "his  employment  on  wages"  the  words 
"the  employ  of  either"  are  used;  and 

In  subdivision  4  the  word  "action"  is  used  in  the  place  of  the  word 
"indictment";  and 

In  subdivision  5,  the  concluding  woi'ds  "in  the  indictment"  are  omit- 
ted; and 

In  subdivision  6  the  words  "feame  charge"  are  used  in  place  of  the 
word  "indictment."     (Asam'dRev.  Com'rs.)] 

See,  State  v.  Chapman,  et  al,  cited  under  last  section, 

Levisee,  p.  1323. 


368  CODE  OF  CRIMINAL  PROCEDURE. 

Consult  sec.  7361,  Comp.  Laws,  sec.  8166,  Rov.  Codes,  infra. 

As  to  grounds  for  challenge  for  bias  in  civil  actions,  see,  sec.  5040, 
Comp.  Laws,  sec.  5428,  Rev.  Codes,  N.  D.,  chap.  2,  ajiie,  pp.  9,  10,  and  de- 
cisions thereunder. 

EXEMPTION  NOT  CAUSE  FOR  CHALLENGE.  §  7360  Comp. 
Laws;  §  8165  Rev.  Codes  N.  D.  An  exemption  from  service  on 
a  jury  is  not  a  cause  of  challenge,  but  the  privilege  of  the  per- 
son exempted.     (Sec.  333,  C.  Cr.  Proc.) 

Levisee,  p.  1323.  /   , 

BIAS— CAUSES  MUST  BE  ALLEGED—WHEN  HAVING  OPINION, 
ETC.,  NOT  DISQUALIFICATION.  §  7361  Comp.  Laws;  §  8166 Rev. 
Codes  N.  D.  In  a  challenge  for  implied  bias,  one  or  more  of 
the  causes  stated  in  section  7359  must  be  alleged.  In  a  chal- 
lenge for  actual  bias,  the  cause  stated  in  the  second  subdivis- 
ion of  section  7358  must  be  alleged;  but  no  person  shall  be  dis- 
qualified as  a  juror  by  reason  of  having  formed  or  expressed  an 
opinion  upon  the  matter  or  cause  to  be  submitted  to  such  jury, 
founded  upon  rumor,  statements  in  public  journals,  or  common 
notoriety,  provided  it  appears  to  the  court,  upon  his  declara- , 
tion,  under  oath  or  otherwise,  that  he  can  and  will,  notwith- 
standing such  an  opinion,  act  impartially  and  fairly  upon  the 
matters  to  be  submitted  to  him.  The  challenge  may  be  oral, 
but  must  be  entered  upon  the  minutes  of  the  court.  (Sec.  334, 
C.  Cr.  Proc.) 

[Sec.  8166,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  all  that  part  of 
the  section  commencing  witt  the  words  "but  no  person"  and  down  to  the 
words  "The  challenge,"  is  omitted;  and  the  references  are  to  sections  "8164" 
and  "8163."    (Am'd  Rev.  Com'rs.)] 

Levisee,  p.  1323. 

Consult  sec.  7359,  Comp.  Laws,  sec.  8164,  Rev.  Codes,  supra. 

See  State  v.  Kent,  4  N.  D.  577,  62  N.  W.  631,  holding  that  good  ground 
existed  for  challenge  to  the  panel,  for  bias  of  the  officer  summoning  them; 
cited  under  sec.  7347,  Comp.  Laws,  sec.  8152,  Rev.  Codes,  supra. 

Statements  in  Public  Journals.  In  Territory  v.  Egan,  3  Dak.  119,  13 
N.  W.  568,  the  question  of  bias  and  prejudice  in  the  public  mind  came  up, 
upon  review  of  the  ruling  of  the  trial  court  upon  motion  for  change  of  venue 
upon  those  grounds.  The  court,  in  ruling  upon  the  question  involved,  and 
in  referring  to  the  aflBdavits  containing  the  showings  for  change  of  venue, 
say:     "The  exhibits  accompanying  the  affidavit,  (the  newspapers  contain- 


CHALLENGING   THE   JURY.  369 

iog  the  account  of  and  comments  upon  t^e  homicide  published  immediately 
after  the  occurrence,)  either  alone  or  with  the  affidavits,  were  not  such  as 
the  rule  contemplates  and  defines  as  essential  to  the  sufficiency  of  an  affida- 
vit, and  especially  when  the  statute,  (Code  of  Criminal  Procedure,  sec.  334,) 
expressly  asserts  that  'no  person  shall  be  disqualified  as  a  juror  by  reason  of 
having  formed  or  expressed  an  opinion  *  *  *  founded  upon  rumors  or 
statements  in  public  journals.'  Why  should  the  court  ignore  the  theory  of 
the  statute,  and  conclude  that  newspaper  statements  published  some  eight- 
een months  prior  to  the  application  for  change  of  venue,  had  created  such  a 
bias  and  prejudice  in  the  public  mind  that  a  fair  and  impartial  trial  could 
not  be  hadi"' 

Qualifications  of  Juror — Court  Decides  Question — Reversal.  Sec. 
7361,  Comp.  Laws,  relating  to  qualifications  of  a  juror,  commits  to  the  trial 
court  the  question  of  fact  whether  a  juror  can  and  will  act  impartially  and 
fairly,  and  its  decision  will  only  be  reversed  by  this  court  where,  in  its  opin- 
ion, such  decision  is  plainly  wrong.     State  v.    Church,   S.  D ,  60  N. 

W.  143;  Stokes  v.  People,  53  N.  Y.  164;  Balbo  v.  People,  80  N.  Y.  484;  Spies 
V.  People,  122  III.  262,  12  N.  E.  865,  17  N.  E.  898;  Stout  v.  State,  90  Ind.  1. 

EXCEPTION  TO  CHALLENGE,  PROCEEDINGS  ON.  §  7362  Comp. 
Laws;  sec.  8167  Rev.  Codes  N.  D.  The  adverse  party  may  ex- 
cept to  the  challenge  in  the  same  manner  as  to  a  challenge  to 
the  panel,  and  the  same  proceedings  must  be  had  thereon  as 
prescribed  in  section  7343,  except  that  if  the  exception  be  al- 
lowed the  juror  must  be  excluded.  The  adverse  party  may 
also  orally  deny  the  facts  alleged  as  the  ground  of  challenge. 
(Sec.  335,  C.  Cr.  Proc.) 

[Sec.  8167,  Rev.  Codes,  N.  D.,  refers  to  section  "8148."] 

Levisee,  p.  1323. 

Consult  sec.  7343,  7344,  7345,  Comp.  Laws,  sec.  8148,  8149,  8150,  Rev. 
Codes,  supra. 

TRIED  BY  COURT,  WITHOUT  TRIERS.  §  7363  Comp.  Laws;  § 
8168  Rev.  Codes  N.  D.  All  challenges,  whether  to  the  panel 
or  to  individual  jurors,  shall  be  tried  by  the  court,  without  the 
aid  of  triers.     (Sec.  336,  C.  Cr.  Proc.) 

Levisee,  p.  1324. 

Consult  next  three  sections. 

JUROR  CHALLENGED,    A    WITNESS— MUST    ANSWER    QUES- 
TIONS.    §  7364   Comp.    Laws;    sec.    8169    Rev.    Codes   N.    D. 
Upon  the  trial  of  a  challenge  to  an  individual  juror,  the  juror 
24— T  P 


370  CODE  OF  CRIMINAL  PROCEDURE. 

challenged  may  be  examined  as  a  witness  to  prove  or  disprove 
the  challenge,  and  is  bound  to  answer  every  question  pertinent 
to  the  inquiry  therein.     ( Sec.  337,  C.  Cr.  Proc. ) 

Levisee,  p.  1324. 

Consult  proceeding  section,  and  next  two  sections. 

OTHER  WITNESSES— RULES  OF  EVIDENCE.  §  7365  Corap. 
Laws;  §  8170  Rev.  Codes  N.  D.  Other  witnesses  may  also  be 
examined  on  either  side,  and  the  rules  of  evidence  applicable 
to  the  trial  of  other  issues  govern  the  admission  or  exclusion 
of  testimony,  on  the  trial  of  the  challenge.  (Sec.  338,  C.  Cr. 
Proc. ) 

Levisee,  p.  1324. 

Consult  two  preceding  sections,  and  next  section. 

COURT  ALLOWS  OR  DISALLOWS  CHALLENGE.  §  7366  Comp. 
Laws;  §  8171  Rev.  Codes  N.  D,  On  the  trial  of  a  challenge, 
the  court  must  either  allow  or  disallow  the  challenge,  and  di- 
rect an  entry  accordingly  upon  the  minutes.  (Sec.  339,  C.  Cr. 
Proc. ) 

Levisee,  p.  1324. 

Consult  three  preceding  sections. 

ORDER  OF  TAKING  CHALLENGE.  §  7367  Comp.  Laws;  §  8172 
Rev.  Codes  N.  D.  All  challenges  to  an  individual  juror,  ex- 
cept peremptory,  must  be  taken,  first  by  the  defendant,  and 
then  by  the  state,  and  each  party  must  exhaust  all  his  chal- 
lenges before  the  other  begins.     (Sec.  340,  C.  Cr.  Proc.) 

Levisee,  p.  1324. 

Consult  next  section. 

ORDER  OF  CHALLENGE,  FOR  CAUSE.  §  7368  Comp.  Laws;  § 
8173  Rev.  Codes  N.  D.  The  challenges  of  either  party  for 
cause  need  not  all  be  taken  at  once,  but  they  must  be  taken 
separately,  in  the  following  order,  including  in  each  challenge 
all  the  causes  of  challenge  belonging  to  the  same  class: 

1.  To  the  panel. 

2.  To  an  individual  juror  for  a  general  disqualification. 

3.  To  an  individual  juror  for  implied  bias. 

4.  To  an  individual  juror  for  actual  bias.  (Sec.  341,  C. 
Cr.  Proc.) 


THE   TRIAL.  371 


Levisee,  p.  1324. 

Consult  preceding  section. 

PEREMPTORY  CHALLENGES— ORDER  OF  TAKING.  §  7369 
Comp.  Laws;  §  8174  Rev.  Codes  N.  D.  If  all  challenges  on 
both  sides  are  disallowed,  either  party,  first  the  state  and  then 
the  defendant,  may  take  a  peremptory  challenge,  unless  the 
party's  peremptory  challenges  are  exhausted.  (Sec.  342,  C. 
Cr.  Proc. ) 

Levisee,  p.  1324. 

Consult  sec.  7350,  7351,  7352,  Comp.  Laws,  sec.  8155,  8156,  8157,  Rev. 
Codes,  supra. 


CHAPTER    XXIX. 

Chap.  2,  Title  8,  Code  Criminal  Procedure,  S.  D. 

Art.  2,  Chap.  10,  Code  Criminal  Procedure,  N.  D. 
the  trial. 

ORDER  OF  TRIAL,  AND  ARGUMENT  TO  JURY— JUDGE'S 
CHARGE  IN  WRITING,  UNLESS.  §  7370  Comp.  Laws;  §  8175  Rev. 
Codes  N.  D.  The  jury  having  been  empaneled  and  sworn,  the 
trial  must  proceed  in  the  following  order: 

1.  If  the  indictment  is  for  felony,  the  clerk  or  state's  at- 
torney must  read  it,  and  state  the  plea  of  the  defendant  to  the 
jury.  In  all  other  cases,  this  formality  may  be  dispensed 
with. 

2.  The  state's  attorney,  or  other  counsel  for  the  state, 
must  open  the  case  and  offer  the  evidence  in  support  of  the  in- 
dictment. 

3.  The  defendant  or  his  counsel  may  then  open  his  de- 
fense, and  offer  his  evidence  in  support  thereof. 

4.  The  parties  may  then,  respectively,  offer  rebutting 
testimony  only,  unless  the  court,  for  good  reason,  in  further- 
ance of  justice,  or  to  correct  an  evident  oversight,  permit  them 
to  offer  evidence  upon  their  original  case. 


372  CODE  OF  CRIMINAL  PROCEDURE. 

5.  When  the  evidence  is  concluded,  unless  the  case  is 
submitted  to  the  jury  on  either  side,  or  on  both  sides,  without 
argument,  the  counsel  for  the  state  shall  commence,  and  thfe 
defendant  or  his  counsel  shall  follow;  then  the  counsel  for  the 
state  shall  conclude  the  argument  to  the  jury. 

6.  The  judge  must  then  charge  the  jury;  he  may  state  the 
testimony,  and  must  declare  the  law,  but  must  not  charge  the 
jury  in  respect  to  matters  of  fact;  such  charge  must,  if  so  re- 
quested, be  reduced  to  writing  before  it  is  given,  unless  by 
tacit  or  mutual  consent  it  is  given  orally,  or  unless  it  is  fully 
taken  down  at  the  time  it  is  given  by  a  stenographic  reporter, 
appointed  by  the  court.     (Sec.  343,  C.  Cr.  Proc) 

[Sec.  8175,  Rev.  Codes,  N.  D.,  is  the  same,  except  that,  in  subdivisions 
1  and  2,  the  words  ''information  or"  precede  the  word  "indictment";  and  all 
after  the  word  "jury"  in  the  first  clause  of  subd.  6  is  omitted.  (As  am'd 
Jlev.  Com'rs.)! 

See  general  annotations  under  this  section  below  sec.  8179,  Rev.  Codes, 
infra. 

Although  the  above  section  has  not  been  formally  amended  by  the  leg- 
islature of  South  Dakota,  chap.  64,  session  laws  1895,  (pp.  69  to  71)  provides 
for  trials  upon  information  of  "crimes,  misdemeanors  and  offenses;"  and 
section  4  of  that  act  is  as  follows:  That  all  provisions  of  law  now  in  force 
on  the  statutes  of  this  state  applying  to  prosecutions  upon  indictment,  to 
writ  and  processes  therein,  and  the  issuing  and  service  thereof  to  motions, 
pleadings,  trials  and  punishment,  or  the  execution  of  any  sentence  and  to 
all  other  proceedings  in  cases  of  indictment,  whether  in  courts  of  original 
or  appellate  jurisdiction,  shall  in  the  same  manner  and  to  the  same  extent 
as  near  as  may  be,  apply  to  informations  and  all  prosecutions  and  proceed- 
ings thereon. 

SAME— CHARGE  TO  JURY— SEPARATE  PAPER— MODIFICATION, 
WHEN.  §  8176  Rev.  Codes  N.  D.  In  charging  the  jury,  the 
court  shall  only  instruct  as  to  the  law  of  the  case,  and  all  in- 
structions must  first  be  reduced  to  writing,  unless  by  consent 
of  both  parties  entered  in  the  minutes,  the  instructions  are 
given  orally  and  taken  down  by  the  stenographer  of  the  court, 
in  shorthand.  Either  party  may  request  instructions  to  the 
jury.  Each  instruction  so  requested  must  be  written  on  a  sep- 
arate sheet  of  paper,  and  may  be  given  or  refused  by  the  court, 
and  the  court  shall  write  on  the  margin  of  such  requested  in- 


THE  TRIAL.  373 


structions  which  he  does  not  give  the  word  "refused,"  and  all 
instructions  asked  for  by  either  party  shall  be  given  or  refused 
by  the  court  without  modification  or  change,  unless  modified  or 
changed  by  the  consent  of  the  counsel  asking  the  same.  (Sec. 
343,  C.  Cr.  Proc,  am'd  Sec.  1,  chap.  84,  laws  1893,  am'd  Rev. 
Com'rs. ) 

.  SAME— DISCLOSURE  AS  TO  WHO  REQUESTED— SIGNII^G— 
TAKEN  IN  RETIREMENT,  WHEN.  §  8177  Rev.  Codes  N.  D.  All 
instructions  given  to  the  jury  must  be  read  to  them  by  the 
court  without  disclosing  to  them  whether  such  instructions 
were  requested  or  not,  and  must  be  signed  by  the  j  udge  and 
may  be  delivered  to  the  jury,  and  be  taken  by  them  in  their  re- 
tirement and  returned  into  court  with  the  verdict.  But  when 
oral  instructions  are  given  the  jury  shall  not  take  any  part  of 
the  charge  in  their  retirement  unless  so  ordered  by  the  court. 
(Sec.  1,  chap.  84,  laws  1893  N.  D.,  as  am'd  Rev.  Com'rs.) 

INSTRUCTIONS  FILED— WHEN  DEEMED  EXCEPTED  TO— ORAL 
CHARGE  TAKEN  BY  STENOGRAPHER,  TRANSCRIBING  OF— FILING 
EXCEPTIONS.  §  8178  Rev.  Codes  N.  D.  Upon  the  close  of  the 
trial  all  instructions  given  or  refused  together  with  those  pre- 
pared by  the  court,  if  any,  must  be  filed  with  the  clerk,  and  except 
as  otherwise  provided  in  the  next  section  shall  be  deemed  except- 
ed to  by  the  defendant.  If  the  charge  of  the  court,  or  any  part 
thereof  is  given  orally,  the  same  must  be  taken  down  by  the 
official  stenographer  and  shall  be  deemed  excepted  to  by  the 
defendant,  and  the  same  as  soon  as  may  be  after  the  trial  must 
be  written  out  at  length  and  filed  with  the  clerk  of  the  court  by 
the  stenographer  thereof;  provided,  that  in  case  the  defendant 
is  acquitted  by  the  jury  the  oral  instructions  need  not  be  tran- 
scribed or  filed  with  the  clerk.  But  exceptions  in  writing  to 
any  of  the  instructions  of  the  court  in  any  manner  given,  or  the 
refusal  of  the  court  to  give  instructions  requested,  may  be  filed 
by  the  defendant  at  his  discretion,  with  the  clerk  of  the  court 
within  twenty  days  after  the  instructions  are  all  filed  as  herein 
provided.  The  stenographer  of  the  court  shall  receive  for 
writing  out  the  oral  instructions  of  the  court  the  same  fees   as 


374  CODE  OF  CRIMINAL  PROCEDURE. 

for  making  transcripts.     (Sec.  1,  chap.  84,  laws  1893,  N.  D.,  as 
am'd  Rev.  Com'rs. ) 

COURT  MAY  SUBMIT  INSTRUCTIONS  TO  COUNSEL— DUTY  OF 
COUNSEL  §  8179  Rev.  Codes  N.  D.  The  court  may  in  its  dis- 
cretion, submit  the  written  instructions  which  it  proposes  to 
give  to  the  jury,  to  the  counsel  in  the  case  for  examination,  and 
require  such  counsel  after  reasonable  examination  thereof,  to 
designate  such  parts  thereof  as  he  may  deem  objectionable,  and 
such  counsel  must  thereupon  designate  such  parts  of  such  in- 
structions as  he  may  deem  improper  and  thereafter  only  such 
parts  of  said  written  instructions  so  designated  shall  be  deemed 
excepted  to,  or  subject  to  exceptions.  (Sec.  1,  chap.  84,  laws 
1893,  N.  D.,  as  am'd  Rev.  Com'rs.) 

Levisee,  p.  1324-5. 

Consult  sees.  7396,  7405,  Comp.  Laws,  sees.  8208,  8217,  Rev.  Codes,  in- 
fra. 

As  to  instructions  in  civil  cases,  see  sees.  5048,  5049,  Comp.  Laws,  sees. 
5432,  5433,  Rev.  Codes,  N.  D.,  anU,  chap.  3,  pp.  14  to  26. 

The  following  is  sec.  7,  art.  6,  Constitution  S.  D.: 

In  all  criminal  prosecutions  the  accused  shall  have  the  right  to  defend 
in  person  and  by  counsel;  to  demand  the  nature  and  cause  of  the  accusation 
against  him;  to  have  a  copy  thereof;  to  meet  the  witnesses  against  him  face 
to  face;  to  have  compulsory  process  served  for  obtaining  witnesses  in  his 
behalf,  and  to  a  speedy  public  trial  by  an  impartial  jury  of  the  county  or 
district  in  which  the  offense  is  alleged  to  have  been  committed. 

The  corresponding  constitutional  provision  of  North  Dakota  is  as 
follows: 

Sec.  13.  In  criminal  prosecutions  in  any  court  whatever,  the  party  ac- 
cused shall  have  the  right  to  a  speedy  and  public  trial;  to  have  the  pro- 
cess of  the  court  to  compel  the  attendance  of  witnesses  in  his  behalf;  and  to 
appear  and  defend  in  person  and  with  counsel.  No  person  shall  be  twice 
put  in  jeopardy  for  the  same  offense,  nor  be  compelled  in  any  criminal  case 
to  be  a  witness  against  himself,  nor  be  deprived  of  life,  liberty  or  property 
without  due  process  of  law. 

Sufficiency  of  Indictment.  Under  the  above  constitutional  provision 
of  South  Dakota  touching  the  nature  and  cause  of  the  accusation,  the  of- 
fense charged  in  an  indictment  must  be  set  forth  with  sufficient  certainty  to 
enable  the  accused  to  prepare  his  defense  in  advance  of  the  trial,  to  enable 
the  trial  court  to  know  that  the  accused  is  being  tried  upon  the  identical 
charge  passed  upon  by  the  grand  jury,  and  to  enable  the  accused  to  plead 
his  conviction  or  acquittal  in  bar  of  a  second  indictment.  State  v.  Burch- 
ard,  4  S.  D.  548,  57  N.  W.  491. 


THE   TRIAL.  375 


(a).     Instructions — The  Law. 

Instructions  Abstractly  Wrong,  And  Irrelevant,  Not  Reversible 
Error.  An  instruction  abstractly  wrong,  but  which  is  not  applicable  or 
pertinent  to  the  case  for  the  reason  that  there  was  no  evidence  calling  for  a 
charge  upon  that  point,  is  no  ground  for  reversal  where  it  is  evident  that 
such  instruction  could  not  have  misled  the  jury.     State   v.  Church,  ....  S, 

D ,  60  N.  W.  143;   Shorter  v.  People,  2  N.  Y.  193;  Horner  v.  Wood,  16 

Barb.  391;  Satterlee  v.  Bliss,  36  Cal.  489;  Thomp.  Char.  Jur.  sec.  117,  and 
cases  cited.  Advising  That  Jury  Ought  to  Ag^ee,  When  Not  Reversi- 
ble Error.  A  jury  having  been  out  twenty -eight  hours  in  a  prosecution 
for  felony,  and  being  brought  in  for  further  instructions,  the  court  after 
giving  the  instructions,  stated  to  them:  "I  think  you  will  be  able  to  arrive 
at  a  verdict  in  this  case;  the  case  has  been  twice  tried  at  a  great  deal  of  ex- 
pense to  this  county,  and  it  seems  to  me,  gentlemen,  that  you  ought  to 
agree  on  a  verdict."  Held,  that  while  his  remarks  were  objectionable,  they 
would  not  warrant  setting  aside  a  verdict.  Territory  v.  King,  6  Dak.  131, 
50  N.  W.  623. 

Written  Charge —Request  For.  Under  sections  343,  346,  Code  Crim. 
Proc.  (sec.  7370,  7373,  Comp.  Laws)  the  failure  of  the  record  to  show  the 
charge  of  the  court,  in  absence  of  proof  tliat  it  was  requested  that  it  be  put 
in  writing,  is  not  error;  Territory  v.  Christensen,  4  Dak.  410,  31  N.  W.  847; 
Bilansky  v.  State,  3  Minn.  427  (Gil.  313);  Walker  v.  State  (Ind.),  1  N.  E. 
856;  Kelly  v.  U.  S.,  27  Fed.  Rep.  616;  Bish.  Cr.  Proc.  1343;  Whar.  Cr.  PL 
&  Pr.  sec.  913.  Additional  Instructions  on  Sunday.  A  jury  that  has  re- 
tired to  deliberate  upon  their  verdict,  may  request  and  receive  additional 
instructions  on  the  Sabbath,  or  the  judge  may  on  that  day,  upon  his  own 
motion,  have  the  jury  brought  in  and  re-instruct  them,  for  the  purpose  of 
correcting  a  supposed  error  or  mistake  in  his  former  charge.  People  v. 
Odell,  1  Dak.  189,  46  N.  W.  601. 

Statute  —  Criminal,  as  to  Instructions,  Prevails.  Sec.  343,  C.  Cr. 
Proc,  relating  to  charging  juries  in  criminal  actions,  in  so  far  as  it  contra- 
venes sec.  248,  Code  Civ.  Proc,  relating  to  the  giving  of  instructions  to  jur- 
ies, must  prevail  in  criminal  causes.  Territory  v.  Christensen,  4  Dak.  410, 
31  N.  W.  847. 

(b).     Construing  Euidence — Advising  Verdict,   Etc. 

Argumentative  Comparison  of  Witnesses  by  Court,  When  Error. 
Where  the  trial  court  in  a  criminal  case,  in  delivering  its  charge  to  the 
jury,  makes  an  argumentative  comparison  upon  the  relative  credibility  of 
the  principal  witness  for  the  defense,  and  the  principal  witness  for  the  pros- 
ecution, where  the  testimony  is  vital  and  diametrically  in  conflict,  and  in  so 
doing  disparages  the  credibility  of  such  witness  for  the  defense,  and  also 
conveys  to  the  jury  in  plain,  though  indirect  terms,  that  the  court  enter- 
tains strong  suspicions  of  the  credibility  of  such  witness  for  the  defense, 


376  CODE  OF  CRIMINAL  PROCEDURE. 

held,  reversible  error.  Territory  v.  O'Hare.  1  N.  D.  30,  44  N.  W.  1003;  2 
Thomp.  Tr.,  sees.  2285-2287;  Thomp.  Char.  Jur..  sec.  36;  Dingman  v.  State, 
(Wis.),  4  N.  W.  668;  Lampe  v.  Kennedy  (Wis.),  18  N.  W.  730;  People  v. 
Lyons,  49  Mich.  78,  13  N.  W.  365;  Mawrich  v.  Elsey,  47  Mich.  10,  10  N.  W. 
57.  Same— Charge  that  Jury  Judge  of  Evidence,  Does  Not  Cure.  Held, 
further,  that  such  error  is  not  cured  by  repeated  statements  in  the  charge 
that  the  jury  are  the  exclusive  judges  of  the  weight  of  evidence  and  credi- 
bility of  witnesses.  Subdivision  6,  sec.  343,  C.  Or.  Proc,  declaring  that  in 
charging  the  jury  in  criminal  trials,  the  judge  "may  state  the  testimony, 
*  *  but  must  not  charge  the  jury  in  respect  to  matters  of  fact,"  has,  as  to 
criminal  trials,  abrogated  the  common  law  rule,  under  which  judges  were 
permitted  to  give  juries  their  own  views  and  opinions  upon  the  weight  of 
the  evidence  and  credibility  of  witnesses.  Territory  v.  O'Hare,  supra. 
Facts  Forming  Basis  of  Charge,  Must  be  Contested.  Matters  of  fact,  as 
to  which  the  court  is  permitted  to  charge  the  jury,  are  facts  contested,  or  in 
some  degree  sought  to  be  established  by  evidence.  In  assuming  the  non- 
existence of  evidence  excluded  or  not  offered,  the  court  does  not  invade  the 
province  of  the  jury.     Territory  v.  Gay,  2  Dak.  125,  2  N.  W.  477. 

Evidence  Only  Reducing  Grade,  Not  Excuse  or  Justification.  It 
is  proper  to  instruct  the  jury  that  evidence,  which  only  tends  to  reduce  the 
grade  of  the  offense,  is  not  to  be  considered  by  them  as  tending  to  excuse  or 
justify  the  killing.  Territory  v.  Gay,  supra;  People  v.  Brothertown,  47 
Cal.  338;  Yankton  Co.  v.  Rossteuscher,  1  Dak.  125, N.  W As- 
sault With  Deadly  Weapon  —  Instruction  as  to  Presumption  —  Error, 
There  being,  under  provisions  ot  the  Penal  Code,  felonious  assaults  by  the 
use  of  deadly  weapons,  other  than  assault  with  intent  to  kill:  Held,  erro- 
neous to  instruct  the  jury  that  "where  an  assault,  or  assault  and  battery  is 
made  with  a  deadly  weapon,  there  is  a  presumption  of  an  intent  to  take  life, 
and  can  only  be  rebutted  by  proof  that  it  was  excusable  or  justifiable." 
People  v.  Odell,  1  Dak.  189,  46  N.  W.  601. 

Instruction  That  No  Evidence  Excusing,  When  Good.  Upon  a 
trial  for  homicide,  the  killing  by  means  of  a  deadly  weapon  being  admit- 
ted, there  being  in  fact  no  legal  or  competent  evidence  tending  to  excuse 
or  justify  the  killing,  it  is  not  error  to  instruct  the  jury  that  "there  is  no 
evidence  whatever,  admitting  every  word  to  be  true,  that  will  excuse  the 
killing."  Territory  v.  Gay,  2  Dak.  125,  2  N.  W.  477.  There  being  no  evi- 
dence tending  to  excuse  or  justify  the  killing,  it  is  not  error  to  instruct  the 
jury  that,  "if  you  regard  the  oaths  you  have  taken,  your  verdict  must  be 
murder  or  manslaughter."  Territory  v.  Gay,  supra;  People  v.  Sanches, 
24  Cal.  17;  People  v.  Estrand,  49  Cal.  171;  People  v.  Turley,  50  Cal.  469; 
People  V.  King,  27  Cal.  507;  People  v.  Welch,  49  Cal.  174;  People  v.  Dick, 
34  Cal.  663.  Undisputed  Facts— Denial  of  Motion  to  Advise  That  Evi- 
dence Insu£S.cient — Error.     Upon  trial  of  a  defendant  under  indictment 


THE   TRIAL.  377 


framed  under  sec.  6303,  Comp.  Laws,  for  illegally  receiving  money  for  ofifi- 
cial  acts,  field,  where  certain  facts  were  undisputed,  the  trial  court  erred 
in  denying  a  motion  to  advise  the  jury  that  the  evidence  was  insufficient  to 
warrant  conviction;  State  v.  Bauer,  1  N.  D.  273;  47  N.  W.  378.  Fees  of 
County  Commissioner — Instructions  as  to.  The  court  properly  instruct- 
ed the  jury  in  effect,  that  the  statute  relative  to  fees  of  county  commission- 
ers is  plain  and  unambiguous,  and  that  three  dollars  per  day  and  five  cents 
per  mile  as  mileage  are  all  the  fees  he  is  entitled  to;  State  v.  Bauer,  supra; 
held,  also,  that  the  court  erred  in  instructing  the  jury  in  effect  that  the  act 
of  demanding  and  receiving  pay  upon  a  private  and  nonofficial  claim  is  a 
criminal  act  under  sec.  6303,  Comp.  Laws.  Id;  People  v.  Kalloch,  60 
Cal.  116. 

(o).     Witnesses — Evidence. 

Witnesses  not  Named  on  Indictment,  Competent.  Persons  whose 
names  are  not  endorsed  upon  the  indictment  may  be  examined  as  witnesses 
upon  the  trial  on  the  part  of  the  state.  (Territory  v.  Godfrey,  6  Dak.  46, 
SON.  W.  481,  followed.)  State  v.  Boughner,  5  S.  D.  461,  59  N.  W.  736; 
State  V.  Abrahams,  6  la.  117;  People  v.  Jocelyn,  29  Cal. 562;  State  v.  O'Day, 
89  Mo.  559,  1  S.  W.  759.  Witnesses  not  Before  Grand  Jury,  Competent. 
Sec.  7236  and  7283  Comp.  Laws,  do  not  forbid  the  state  to  use  on  a  trial  other 
witnesses  than  those  examined  before  the  grand  jury.  State  v.  Church, 
supra;  Territory  v.  Godfrey,  6  Dak.  46,  50  N.  W  481;  State  v.  Abrahams,  6 
la.  117;  State  v.  McClintock,  8  la.  203;  People  v.  Jocelyn,  29  Cal.  562;  Gard- 
ner v.  People,  3  Scam.  (111.),  83.  Refusing  to  Quash  Indictment — Omit- 
ted Witness  not  Testifying.  The  overruling  of  a  motion  to  quash  indict- 
ment, made  after  plea  and  on  the  ground  that  the  name  of  a  witness  has 
been  ommitted  from  the  list  on  the  indictment,  is  not  reversible  error,  when 
such-  witness  is  not  allowed  to  testify,  and  it  clearly  appears  that  the  ac- 
cused was  not  injured  by  exercise  of  the  court's  discretion.  State  v.  Isaac- 
son,   S.  D ,65  N.  W.  430.     Oral  Notice  of  Witness  Before   Trial. 

It  is  not  necessarily  error  to  allow  witnesses  on  behalf  of  the  state  to  testify, 
against  objection,  where  the  prosecution  gave  oral  notice  before  trial  that 
certain  witnesses  not  examined  before  the  grand  jury  would  be  called  for 
the  state,  the  objection  being  that  such  notice  was  not  in  writing  and  given 

at  an  earlier  date.     State  v.  Isaacson, S.  D ,  65  N.  W.  430;  State  v. 

Church,  supra.  A  regardful  examination  of  the  record  discloses  no  erron- 
eous ruling  of  the  trial  court  on  admission  or  rejection  of  evidence,  for 
which  the  judgment  should  be  reversed.  Id.  Opinion  of  Guilt.  Where 
a  witness  in  a  criminal  action  testified  on  cross  examination  that  he  testi- 
fied on  the  preliminary  examination  that  he  thought  the  prisoner  guilty, 
and  admitted  on  the  present  hearing  that  he  formed  that  opinion  in  ad- 
vance of  any  trial,  held,  that  such  testimony  did  not  entitle  the  state  to  show 
by  witness  what  his  opinion  was  at  the  time  of  trial  as  to  defendant's  guilt 


378  CODE  OF  CRIMINAL  PROCEDURE. 

or  innocence,  and  that  it  wa8  prejudicial  error  to  allow  the  state  to  ask  and 
witness  to  answer,  against  objection,  the  question  if  he  still  had  the  opinion 
that  the  defendant  was  guilty.  State  v.  Wilson,  4  S.  D.  535,  57  N.  W. 
338. 

Handwriting — Expert  Testimony,  When  Incompetent.  The  testi- 
mony of  an  expert  in  handwriting  was  excluded  by  the  trial  court.  He  tes- 
tified that  he  was  acquainted  with  defendant's  handwriting,  but,  being  ex- 
amined by  the  court,  testified  he  had  seen  defendant  write  but  once,  and  that 
was  during  the  noon  recess  of  the  court,  at  which  time  he  had  at  request  of 
defendant's  counsel  seen  defendant  write,  for  the  sole  purpose  of  becoming  a 
witness.  Held,  not  error.  Territory  v.  O'Hare,  1  N.  D.  30,  44  N. 
W.  1003,  1  Greenl.  Ev.,  sec.  677,  note  2;  Reese  v.  Reese,  99 
Pa.  St.  89;  9  Am.  &  Eng.  Ency.  Law,  277,  note  3.  Compari- 
son of  Handwriting,  When  Improper— Federal  Precedents.  Where 
letters  purporting  to  have  been  written  by  defendant  for  the  sole 
purpose  of  comparison  of  handwriting  with  disputed  writings  put  in  ev- 
idence by  th-e  territory,  and  which  letters  were  excluded,  held,  not  error. 
Writings  not  in  evidence  for  other  purposes  cannot  be  compared  with  dis- 
puted writings,  under  the  common  law  rule  adopted  by  the  supreme  court  of 
the  United  States.  The  trial  court,  in  making  such  ruling,  was  a  territor- 
ial court  of  subordinate  jurisdiction,  and  as  such  was  bound  by  federal  prece- 
dents. Should  the  same  question  arise  in  a  case  commenced  after  this  state 
was  admitted  into  the  Union,  we  shall  feel  at  liberty  to  establish  a  more  lib- 
eral rule,  if  we  shall  then  deem  it  expedient  so  to  do.  Territory  v.  O'Hare, 
1  N.  D.  30,  44  N.  W.  1003;  Moore  v.  U.  S.,  91  U.  S.  270;  Strother  v.  Lucas, 
6  Pet.  763;  Vinton  v.  Peck,  14  Mich.  287;  9  Am.  &  Eng.  Ency.  Law,  283-289. 

Cross-Examination  of  Defendant — Same  as  Other  Witness.  Defen- 
dant in  a  criminal  case  having  taken  the  stand  at  his  own  request  as  a  wit- 
ness on  his  own  behalf,  and  on  cross  examination  being  required  to  testify 
as  to  his  antecedents,  stated  in  so  doing  that  he  had  passed  under  names 
other  than  his  own,  and  had  been  in  jail  at  diflferent  times  and  places,  such 
testimony  being  objected  to  as  irrelevant,  and  not  proper  cross  examination 
— no  question  of  privilege  having  been  presented.  Meld,  not  error.  A  de- 
fendant under  such  circumstances  occupies  no  better  position  than  any  other 
witness;  hence,  within  bounds  of  a  sound  judicial  discretion,  may  be  cross- 
examined  as  to  specific  collateral  facts  for  the  sole  purpose  of  affecting  his 
credibility.  This  is  the  rule  that  is  established  by  a  decided  pi'eponderance 
of  authority;  but  a  different  rule  prevails  in  certain  states,  as  in  Oregon, 
California,  and  Missouri,  where  statutes  have  restricted  the  right  of  cross 
examination  to  matters  drawn  out  in  chief.  Territory  v.  O'Hare,  1  N.  D.  30, 
44  N.  W.  1003;  People  v.  Giblin  (N.  Y.),  21  N.  E.  1062;  People  v.  Brown,  72 
N.  Y.  571;  Yanke  v.  State,  51  Wis.  464,  8  N.  W.  276;  McBride  v.  Wallace, 
29  N.   W.  75;  People  v.  Cummins,  11  N.  W.  184;  Anarchists'  Case,  12  N.  E. 


•THE  TRIAL.  379 


979;  State  v.  Pfefferle(Kan.),  12  Pac.  406;  People  v.  Clark  (N.  Y.),  8  N.   E. 
38;  State  v.  Clinton,  67  Mo.  380;  State  v.  Cox,  Id.  392. 

General  Reputation — Bawdy  House — Permitting  Same— Listed  For 
Taxation.  Evidence  of  general  reputation  and  character  of  a  house  is  ad- 
missible in  evidence,  as  tending  to  show  the  fact  that  it  is  kept  as  a  bawdy 
house.  Territory  v.  Stone,  2  Dak.  155,4  N.  W.  697;  Territory  v.  Chart- 
rand,  1  Dak.  379,  46  N.  W.  583.  Where  defendant  is  charged  with  permit- 
ting a  house  to  be  used  as  a  bawdy  house,  evidence  that  such  house  was 
listed  for  taxation  the  same  year  in  name  of  defendant,  is  admissible  on 
question  of  ownership.  Territory  v.  Stone  supra.  One  who  owns  and  has 
control  of  a  house,  and  with  knowledge  of  its  illegal  use,  remains  passive 
and  without  wholly  approving  or  consenting,  fails  to  interfere  to  forbid  or 
prevent,  is  guilty  of  permitting  such  use.  Territory  v.  Stone,  supra;  Com. 
V.  Adams,  109  Mass.  344;  Com.  v.  Dean,  1  Pick.  387;  Com.  v.  Bolkom,  3 
Pick.  281;  Whar.  Cr.  Law,  Vol.  3,  see.  2452.  Perjury— Justice's  Docket. 
In  a  trial  for  perjury  alleged  to  have  been  committed  while  defendant  was 
testifying  in  his  own  behalf  before  a  J.  P.  investigating  an  information  for 
selling  intoxicating  liquors,  it  is  error  to  admit  in  evidence  and  permit  the 
jury  to  take  to  their  room  the  justice's  docket  transcript.  Territory  v. 
Jones,  6  Dak.  85,  50  N.  W.  Rep.  528. 

Degree  of  Offense  —  Proof  of  Intoxication,  to  Determine.  Where 
an  offense  is  divided  into  degrees,  evidence  of  intoxication  is  admissible  for 
the  purpose  of  enabling  the  jury  to  determine  the  purpose-motive  or  intent 
with  which  the  act  was  committed.  People  v.  Odell,  1  Dak.  189,  46  N.  W. 
601;  People  V.  Rogers,  18  N.  Y.  9;  Kenny  v.  People,  31  N.  Y.  330.  Intoxi- 
cation, When  Excuse  or  Justification.  Intoxication  may  not  under  any 
circumstances  be  regarded  as  a  defense,  excuse  or  justification  for  the  com- 
mission of  crime,  unless  in  case  of  a  person  who  performs  an  act  under  such 
a  state  of  intoxication  as  to  be  unaccompanied  by  volition,  when  he  has  lost 
control  of  his  will,  and  is  incapable  of  forming  a  purpose.  People  v.  Odell, 
supra.  Assault  With  Intent — Degrees  of  Crime.  The  crime  of  assault, 
or  assault  and  battery  with  intent  to  kill,  is  divisible  into  degrees,  and  de- 
fendant may  be  convicted  of  the  offense  charged,  or  of  any  lesser  offense 
embraced  therein.  People  v.  Odoll,  1  Dak.  189,  46  N.  W.  601;  State  v. 
Shepard,  10  la.  126;  People  v.  English,  30  Cal.  214;  Beckwith  v.  People,  26 
111.  500. 

Proof  of  Substantial  Crime  Involved  in  Indictment.  It  is  enough  to 
prove  so  much  of  the  indictment  as  shows  that  the  defendant  has  committed 
a  substantial  crime  therein  specified,  or  one  that  is  necessarily  included  in 
and  forms  a  constituent  element  of  the  higher  offense  charged.  People  v. 
Odell,  1  Dak.  189,  46  N.  W.  601. 

Judicial  Notice — Inferior  Co\ints — Remand.  This  court  takes  judi- 
cial notice  of  the  jurisdiction  of  inferior  courts,   organized  pursuant  to  gen- 


380  CODE  OF  CRIMINAL  PROCEDURE. 

eral  laws,  within  its  jurisdiction.     State  v.   Bunker, S.  D ,  66  N. 

W.  33;  Nelson  v.  Ladd,  4  S.  D.  1,  54  N.  W.  809;  /t  will  therefore  take  judi- 
cial notice  that  Brown  county  has  a  population  of  less  than  20,000,  and  a 
county  court,  therefore,  has  been  deprived  of  its  jurisdiction  in  bastardy 
cases  under  chap.  64,  laws  1893;  and  by  sec.  4,  chap.  127,  laws  1895,  this 
court  is  required  to  remand  all  actions  then  pending-  in  this  court,  to  the 
Supreme  Court  of  the  county  in  which  such  county  court  was  held.  State  v. 
Bunker,  supra. 

Charge  not  Part  of  Judgment  Roll — Presumption.  A  judgment  in 
a  criminal  case  will  not  be  reversed  because  the  charge  of  the  court  to  the 
jury  is  not  made  part  of  judgment  roll,  the  record  failing  to  show  affirma- 
tively that  defendant  requested  the  judge  to  charge  the  jury  in  writing;  the 
presumption  being  that  the  judge  charged  orally.  Territory  v.  Christen- 
sen,  4  Dak.  410,  31  N.  W.  847;  Bilanski  v.  State,  3  Minn.  427  (Gil.  313); 
Walker  v..  State,  1  N.  E.  857;  Smith  v.  State,  71  Ind.  250;  Kelly  v.  U.  S.,  27 
Fed.  616,  8  Crim.  Law.  Mag.  171;  Gilmer  v.  Grand  Rapids,  16  Fed.  708; 
Jones  V.  Lewis,  8  Ired.  70;  Bish.  Or.  Proc.  1343;  Whart.  Cr.  PI.  &  Pr.,  sec. 
913. 

(d).     Practice — Procedure. 

Prosecution  to  Elect  as  to  Coiints  Before  Trial.  Upon  trial  of  in- 
dictment for  selling  intoxicating  liquors  contrary  to  statute,  evidence  being 
introduced  to  prove  commission  of  several  distinct  offenses,  the  court  should 
before  putting  defendant  on  trial,  require  the  prosecution  to  elect  upon 
which  transaction  the  state  will  rely  for  conviction,   if  requested  to  do  so. 

State  V.  Boughner,  (on   rehearing)    S.  D ,  63  N.  W.  542;  following 

State  V.  Valentine, S.  D . . . . ,  63  N.  W.  541.     Reading  Whole  Statute 

To  Jury — Reftisal  to  Allow.  In  a  prosecution  for  alleged  violation  of  the 
statute  kJiown  as  the  "Prohibitory  Law,"  it  is  not  error  to  refuse  to  allow 
defendant's  counsel  to  read  to  the  jury  "the  whole  of  said  statute."  State 
V.  Church,  ....  S.  D ,  60  N.  W.  143;  Com.  v.  Austin,  7  Gray,  51. 

Plea— Failure  to  Enter — Harmless  Error.  Failure  of  defendant  to 
enter  a  plea  is  not  reversible  error,  he  having  been  deprived  of  no  rights  on 
the  trial  that  he  would  not  have  been  entitled  to  had  a  formal  plea  been  en- 
tered.    State  V.    Bunker,    . . . .  S.  D  . . . .,  65  N.  W.  33;  State  v.  Redding- 

ton, S.  D ,  64  N.  W.  170.     Plea  of  Former  Conviction,  When  a 

Nulity.  A  plea  that  defendant  has  already  been  convicted  of  the  offense 
charged  in  the  indictment  and  was  thereafter  acquitted  by  the  judgment  of 
the  court,  is  a  nullity.  It  is  not  sufficient  either  as  a  plea  of  former  convic- 
tion or  acquittal.  Territory  v.  King,  6  Dak.  131, 50  N.  W.  623.  Stating  Plea 
of  Defendant  to  Jury — Opening  Remarks.  Sec.  343,  C.  Cr.  Proc.  provides 
that  in  a  prosecution  for  felony,  "the  clerk  or  district  attorney  must  read 
(the  indictment)  and  state  the  plea  of  the  defendant  to  the  jury."  Where 
these  directions  had  not  been  complied  with,  but  the  district  attorney  stated 


.THE   TRIAL.  381 


the  offense  charged,  and  defendant's  plea  to  each  juror  as  he  was  being  em- 
paneled, and  that  after  the  jury  had  been  sworn  to  try  the  case,  in  his  open- 
ing remarks,  he  stated  to  them  the  allegations  of  the  indictment  in  sub- 
stance, the  plea  and  the  proof  he  expects  to  inti'oduce.  Held,  that  the  jury 
were  sufficiently  informed  of  the  issue  they  were  to  try,  and  the  denial  of 
a  new  trial  for  the  omission  stated  was  proper.  Territory  v.  King,  6  Dak. 
131,  50  N.  W.  623.  People  v.  Sprague,  53  Cal.  494;  Osgood  v.  State,  25  N. 
W.  529;  State  v.  Green,  23  Id.  154. 

ORDER  OF  TRIAL  CHANGED,  WHEN.  §  7371  Comp.  Laws;  § 
8180  Rev.  Codes  N.  D.  When  the  state  of  the  pleadings  re- 
quires it,  or  in  any  other  case,  for  good  reasons,  and  in  the 
sound  discretion  of  the  court,  the  order  of  trial  and  argument 
prescribed  in  the  last  section  may  be  departed  from,  (Sec  344, 
C.  Cr.  Proc.) 

[Sec.  8180,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in 
the  last  section"  are  substituted  by  the  words  "in  section  8175."] 

Levisee,  p.  1325. 

Consult  preceding  section,  and  decisions  thereunder. 

COURT  DECIDES  LAW.  §  7372  Comp.  Laws;  §  8181  Rev, 
Codes  N.  D.  The  court  must  decide  all  questions  of  law  which 
arise  in  the  course  of  the  trial.     (Sec.  345,  C.  Cr.  Proc.) 

Levisee,  p.   1825. 

Consult  sec.  7370,  Comp.  Laws,  sec.  8175,  Rev.  Codes,  supra;  next  two 
sections,  and  sees.  7396,  7405,  Comp.  Laws,  sees.  8208,  8217,  Rev.  Codes,  in- 
fra. 

See,  also.  State  v.  Boughner,  5  S.  D.  461,  59  N.  W.  786,  cited  under  sec. 
7374,  Comp.  Laws,  sec.  8188,  Rev.  Codes,  infra. 

LIBEL— JURY  DETERMINES  LAW  AND  FACT  §  7373  Comp. 
Laws;  §  8182  Rev.  Codes  N,  D.  On  the  trial  of  an  indictment 
for  libel,  the  jury  have  the  right  to  determine  the  law  and  the 
fact.     (Sec.  346,  C.  Cr.  Proc.) 

[Sec.  8182,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "an 
information  or"  precede  the  word  "indictment."    (Am'd  Rev.  Com'rs.)] 

Levisee,  p.  1325, 

liibel.  See  charge  of  Justice  Shannon,  in  Territory  v.  Taylor,  1  Dak. 
451  (appendix),  upon  trial  of  an  indictment  for  libel, 

OTHER  OFFENSES— LAW  BY  COURT,  .FACT  BY  JURY  §  7374 
Comp.  Laws;  §  8183  Rev.  Codes  N.  D.  On  the  trial  of  an  in- 
dictment for  any  other  offense  than  libel,  questions  of  law  are 


382  CODE  OF  CRIMINAL  PROCEDURE. 

to  be  decided  by  the  court,  and  questions  of  fact  are  to  be  de- 
cided by  the  jury;  and,  although  the  jury  have  the  power  to 
find  a  general  verdict,  which  includes  questions  of  law  as  well 
as  of  fact,  they  are  bound,  nevertheless,  to  receive  as  law  what 
is  laid  down  as  such  by  the  court.     (Sec.  347,  C.  Cr.  Proc.) 

[Sec.  8183,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "an 
information  or*'  precede  the  word  "indictment,"  and  the  clause  "and  ques- 
tions of  fact  are  to  be  decided  by  the  jury"  is  omitted.  (Am'd  Hev. 
Com'rs.)] 

Levisee,  p.  1325. 

Consult  sec.  7370,  Comp.  Laws,  sec.  8175,  Rev.  Codes,  supra;  and  pre- 
ceding section;  sees.  7296,  7405,  Comp.  Laws,  sees.  8208,  8217,  Rev.  Codes, 
infra. 

Law — Co\irt  Gives  to  Jury — Statute  Cannot  Be  Bead  by  Counsel. 
By  sec.  7374,  Comp.  Laws,  the  jury  in  criminal  cases,  except  in  case  of  libel, 
"are  bound  to  receive  as  law  what  is  laid  down  as  such  by  the  court."  It 
was  not  error,  therefore,  for  the  court  to  refuse  permission  to  counsel  for 
accused  to  read  the  law  to  the  jury.  State  v.  Boughner,  5  S.  D.  461,  59  N. 
W.  736.  Giving  Statutory  Definition.  Giving  the  statutory  definition  of 
manslaughter,  in  an  instruction,  cannot  be  construed  as  a  command  to  find 
a  verdict  of  guilty.  Territory  v.  Gay,  2  Dak.  125.  2  N.  W.  477.  Jury  Not 
Judge  of  Law.  In  this  state  the  jury  is  not  the  judge  of  the  law,  but 
must  take  the  law  from  the  court.  Sec.  7374,  Comp.  Laws.  State  v. 
Church,  . . . .  S.  D ,  60  N.  W.  143. 

"Lager  Beer" — Judicial  Notice.  The  courts  will  take  judicial  notice 
that  the  drink  known  as  "lager  beer"  is  an  intoxicating  liquor.     State  v. 

Church, S.  D ,  60  N.  W.  143,   (distinguishing   State  v.    Brewing 

Co.,  5  S.  D.  39,  58  N.  W.  1.) 

Advising  Acquittal  on  Insufficient  Evidence,  When  Proper,  duery. 
Whether,  when  the  evidence  is  insufficient  to  warrant  a  verdict  of  convic- 
tion, the  power  of  the  court  to  "advise  an  acquittal"  is  discretionary  or  ob- 
ligatory; whether  defendant  may  ask  such  instruction,  and  failing  to  do  so, 
waive  any  right  to  present  the  question  after  verdict;  whether  "insuffi- 
ciency of  the  evidence,"  is  in  all  cases  a  question  of  law,  query.  Territory 
V.  Stone,  2  Dak.  155,  4  N.  W.  697. 

Exclusion  of  Evidence— Injury  Must  Appear.  It  must  appear  that 
the  improper  exclusion  of  evidence  may  have  injured  defendant;  and  when 
evidence  excluded  only  tends  to  reduce  the  grade  of  the  offense  to  that  of 
which  defendant  was  convicted,  this  court  will  not  reverse.  Territory  v. 
Gay,  2  Dak.  125,  2  N.  W.  477;  Smith  v.  State,  28  Ind.  321.  Legal  Evidence 
to  Sustain,  Verdict  Not  Disturbed.  Where  there  is  legal  evidence  to 
prove  or  tending  to  prove  every  essential  element  of  the  offense,  the  ver- 
dict will  not  be  disturbed.     Territory  v.  Stpne,  2  Dak.  155,  4  N.  W.  697. 


THE   TRIAL.  383 


COUNSEL,  RESTRICTION  OF— DISCRETION.  §  7375  Comp. 
Laws;  §  8184  Rev.  Codes  N.  D.  If  the  indictment  is  for  an  of- 
fense punishable  with  death,  three  counsel  on  each  side  may 
argue  the  case  to  the  jury.  If  it  is  for  any  other  offense  the 
court  may,  in  its  discretion,  restrict  the  argument  to  one  coun- 
sel on  each  side.     (Sec.  348,  C.  Cr.  Proc.) 

[Sec.  8184,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  precede  the  word  "indictment,"  and  the  word  "for"  in  the 
concluding  sentence  is  omitted.     (Am'd  Rev.  Com'rs.)] 

Levisee,  p.  1325. 
.  Consult  sees.  7370,  7371,  Comp.  Laws,  sees.  8175,  8180,  Rev.  Codes,  sit- 
pra\  sec.  7408,  Comp.  Laws,  sec.  8221,  infra. 

PRESUMED  INNOCENT— REASONABLE  DOUBT  §  7376  Comp. 
Laws;  §  8185  Rev.  Codes  N.  D.  A  defendant  in  a  criminal  ac- 
tion is  presumed  to  be  innocent  until  the  contrary  is  proved, 
and  in  case  of  a  reasonable  doubt  as  to  whether  his  guilt  is  sat- 
isfactorily shown,  he  is  entitled  to  be  acquitted.  (Sec.  349,  C. 
Cr.  Proc.) 

Levisee,  p.  1325. 

Consult  next  section;  sec.  7370,  Comp.  Laws,  sec.  8175,  Rev.  Codes,  su- 
pra, and  decisions  under  heads  of  "Instructions"  and  "Evidence"  there  cited; 
sec.  7384,  7405,  Comp.  Laws,  sees.  8195,8217,  Rev.  Codes,  and  decisions  there- 
under, infra. 

DOUBT  AS  TO  DEGREE— CONVICTION  ON  LOWEST,  §  7377 
Comp.  Laws;  §  8186  Rev.  Codes  N.  D.  When  it  appears  that  a 
defendant  has  committed  a  public  offense  and  there  is  reasona- 
ble ground  of  doubt  in  which  of  two  or  more  degrees  he  is 
guilty,  he  can  be  convicted  of  the  lowest  of  such  degrees  only. 
(Sec.  350,  C.  Cr.  Proc.) 

Levisee,  p.  1326. 

Consult  preceding  section,  and  sections  referred  to  thereunder. 

SEPARATE  TRIAL,  WHEN— DISCRETIONARY,  WHEN.  §  7378 
Comp.  Laws;  §  8187  Rev.  Codes  N.  D.  When  two  or  more  de- 
fendants are  jointly  indicted  for  a  felony,  any  defendant  re- 
quiring it  must  be  tried  separately.  In  other  cases  defendants 
jointly  prosecuted  may  be  tried  separately  or  jointly,  in  the 
discretion  of  the  court.     (Sec.  351,  C.  Cr.  Proc.) 

Levisee,  p.  1326. 


384  CODE  OF  CRIMINAL  PROCEDURE.  < 

[Sec.  8187,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  in  place  of  the 
clause  "jointly  indicted  for,"  the  words  "jointly  charged  with"  are  used. 
(Am'd  Rev.  Cora  Vs.)] 

DISCHARGE  OF  ONE  DEFENDANT  TO  TESTIFY,  WHEN.  §  7379 
Comp.  Laws;  §  8188  Rev.  Codes  N.  D.  When  two  or  more 
persons  are  included  in  the  same  indictment,  the  court  may,  at 
any  time  before  the  defendants  have  gone  into  their  defense, 
on  the  application  of  the  state's  attorney,  direct  any  defend- 
ant to  be  discharged  from  the  indictment,  that  he  may  be  a 
witness  for  the  state.     (Sec.  352,  C.  Cr.  Proc. ) 

[Sec.  8188,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  precede  the  word  "indictment."    (Am'd  Rev.  Com'rs.) 

Levisee,  p.  1326. 

Consult  sec.  7384,  Comp.  Laws,  sec.  8195,  Rev.  Codes,  infra,  as  to  ac- 
complice. 

ACQUITTAL  OF  DEFENDANT  FOR  WANT  OF  EVIDENCE,  WHEN— 
WITNESS  FOR  CO-DEFENDANT  §  7380  Comp.  Laws.  When  two 
or  more  persons  are  included  in  the  same  indictment,  and  the 
court  is  of  opinion  that  in  regard  to  a  particular  defendant 
there  is  not  sufficient  evidence  to  put  him  on  his  defense,  it 
must,  before  the  evidence  is  closed,  in  order  that  he  may  be  a 
witness  for  his  codefendant,  submit  its  said  opinion  to  the  jury, 
who,  if  they  so  find,  may  acquit  the  particular  defendant  for 
the  purpose  aforesaid.     (Sec.  353,  C.  Cr.  Proc.) 

SAME— ORDERED  DISCHARGED  WHEN.  §  8189  Rev.  Codes 
N.  D.  When  two  or  more  persons  are  included  in  the  same  in- 
information  or  indictment,  and  the  court  is  of  the  opinion  that 
in  regard  to  a  particular  defendant  there  is  not  sufficient  evi- 
dence to  put  him  on  his  defense,  it  must  order  him  to  be  dis- 
charged before  the  evidence  is  closed,  that  he  may  be  a  wit- 
ness for  his  codefendant.     (Am'd  Rev.  Com'rs. ) 

Levisee,  p.  1326. 

Consult  preceding  section,  and  next  section. 

DISCHARGE,  IS  ACQUITTAL  OF  WHA T  OFFENSES.  §  8190  Rev. 
Codes  N.  D.  The  discharge  of  a  defendant  under  either  of 
the  last  two  sections  is  an  acquittal  of  the  offense  charged  in 
the  information   or  indictment  or  any   offense   for   which   he 


THE    TRIAL.  385 


might  have  been  found  guilty  thereunder,    and  is  a  bar  to   an- 
other prosecution  therefor.     (Adopted  through  Rev.  Com'rs. ) 
Consult  three  preceding  sections. 

DEFENDANT,  WITNESS  IN  OWN  BEHALF— EFFECT  OF  REFUSAL 
TO  TESTIFY.  §  7381  Comp.  Laws.  In  the  trial  of  all  indict- 
ments, information,  complaints,  and  other  proceedings  against 
persons  charged  with  the  commission  of  any  crimes,  offenses, 
and  misdemeanors  before  any  court  or  committing  magistrate 
in  this  state,  the  person  charged  shall,  at  his  own  request,  but 
not  otherwise,  be  a  competent  witness,  and  his  failure  to  make 
such  request  shall  not  create  any  presumption  against  him. 
(Sec.  1,  chap.  16,  laws  1879.) 

SAME.  §  8191  Rev  Codes  N.  D.  In  the  trial  of  a  criminal 
action  or  proceeding  before  any  court  or  magistrate  of  this 
state,  whether  prosecuted  by  information,  indictment,  com- 
plaint or  otherwise,  the  defendant  shall  at  his  own  request 
and  not  otherwise,  be  deemed  a  competent  witness;  but  his 
neglect  or  refusal  to  testify  shall  not  create  or  raise  any  pre- 
sumption of  guilt  against  him;  nor  shall  such  neglect  or  refus- 
al be  referred  to  by  any  attorney  prosecuting  the  case,  or  con- 
sidered by  the  court  or  jury  before  whom  the  trial  takes  place. 
(As  am'd  Rev.  Com'rs.) 

Following  is  sec.  9,  art.  6,  Constitution  of  S.  D. : 

No  person  shall  be  compelled  in  any  criminal  case  to  give  evidence 
against  himself  or  be  twice  put  in  jeopardy  for  the  same  ofifense. 

That  portion  of  the  corresponding  provision  of  the  N.  D.  Constitution, 
is:  "No  person  shall  be  twice  put  in  jeopardy  for  the  same  offense,  nor  be 
compelled  in  any  criminal  case  to  be  a  witness  against  himself." 

On  question  of  former  jeopardy,  consult  State  v.  Hasledahl,  2  N.  D. 
521,  52  N.  W.  315,  cited  under  sec.  7401,  Comp.  Laws,  sec.  8213,  Rev. 
Codes,  infra. 

RULES  OF  EVIDENCE.  §  7382  Comp  Laws;  §  8192  Rev. 
Codes  N.  D.  The  rules  of  evidence  in  civil  cases  are  appli- 
cable also  to  criminal  cases,  except  as  otherwise  provided  in 
this  code.     (Sec.  354,  C.  Cr.  Proc.) 

Levisee,  p.  1326. 

Consult  next  two  sections. 
25— TP 


386  CODE  OF  CRIMINAL  PROCEDURE. 

Declarations  of  Deceased,  When  Admissible.  On  a  trial  for  mur- 
der of  a  woman  in  her  own  house,  held,  that  the  declarations  of  deceased, 
made  at  a  neighbor's  while  she  was  on  her  way  home,  and  shortly  before 
she  was  killed  (the  same  night,)  and  whom  she  expected  to  meet  at  home, 
including  defendant,  were  properly  admitted  in  evidence.  Territory  v. 
Couk,  2  Dak.  188,  47  N.  W.  395;  Hunter  v.  State,  40  N.  J.  Law  496. 

Testimony  of  "Wife  of  Defendant— U.  S.  Rule— To  What  Cases  Ter- 
ritorial Statute  Inapplicable.  The  statute  of  the  U.  S.  permitting  a  de- 
fendant to  testify  in  his  own  behalf  makes  no  provision  for  the  wife  testify- 
ing; and  in  the  absence  of  a  statute  allowing  a  wife  to  testify  for  her  hus- 
band in  a  criminal  case,  she  is  not  a  competent  witness.  U.  S.  v.  Crow  Dog, 
3  Dak.  106,  14  N.  W.  437.  The  provisions  of  the  Code  of  Criminal  Proced- 
ure of  this  territory  making  the  wife  a  competent  witness  for  her  husband 
have  no  application  to  the  district  courts  when  exercising  jurisdiction  in 
which  the  U.  S.  is  a  party  under  the  laws  of  congress.  U.  S.  v.  Crow 
Dog,  supra.  These  provisions  in  the  Code  of  Criminal  Procedure  apply 
only  to  cases  prosecuted  in  the  name  of  the  territory  for  violation  of  its  laws, 
in  the  courts  for  counties  and  judicial  subdivisions.  U.  S.  v.  Crow  Dog, 
supra. 

Self-Defense— Burden  of  Proof— Doubt  on  Whole  Case.  When  the 
burden  of  proof  is  on  defendant  to  establish  the  affirmative  defens'e  of  self- 
defense,  it  is  not  sufficient  to  warrant  an  acquittal,  for  him  to  raise  a  rea- 
sonable doubt  as  to  whether  the  killing  was  justifiable  or  excusable.  U.  S. 
V.  Crow  Dog,  3  Dak.  106,  14  N.  W.  437:  Poster's  Crown  Law,  255;  People  v. 
Schryver,  42  N.  Y.  1;  People  v.  Milgate,  5  Cal.  127;  Silvus  v.  State,  22 
Ohio  St.  90;  State  v.  Neeley,  20  la.  108;  Com.  v.  York,  9  Mete.  93.  The 
doctrine  of  reasonable  doubt  in  such  case  should  be  applied  to  the  whole 
proofs  and  the  whole  case.     U.  S.  v.  Crow  Dog.  supra. 

Transcript  of  Justice's  Docket,  Incompetent.  On  a  trial  in  the  dis- 
trict court  for  perjury,  alleged  to  have  been  committed  while  defendant 
was  testifying  in  his  own  behalf  on  a  preliminary  examination  for  selling 
intoxicating  liquors,  the  court,  ever  an  objection  of  relevancy  and  in- 
competency, permitted  the  prosecution  to  put  in  evidence  and  the  jury  to 
take  with  them  on  retiring  for  deliberation  a  transcript  of  the  committing 
magistrate's  docket  showing  proceedings  on  the  examination,  and  his  find- 
ing that  there  was  sufficient  caUse  to  believe  defendant  guilty  of  the  offense. 
Held,  error.  Territory  v.  Jones,  6  Dak.  85,  50  N.  W.  528;  Soraerville  v. 
State,  6  Tex.  App.  433;  sec.  383,  C.  Cr.  Proc;  People  v.  Dowdigan,  34  N. 
W.  411;  Littlefield  v.  State,  5  S.  W.  650;  People  v.  Thornton,  16  Pac.  244. 

Cross-Examination  of  Defendant,  Rule  of.  In  the  absence  of  statu- 
tory limitation  as  to  the  extent  to  which  an  accused  person  testifying  in  his 
own  behalf  can  be  cross  examined,  a  defendant  who  does  not  claim  his  priv- 
ilege, but  testifies  in  his  own  behalf,  and  without  reservation  upon  all  the 


THE   TRIAL.  387 


issues,  may,  within  the  discretion  of  the  court,  be  cross  examined  concern- 
ing matters  which  tend  to  impugn  his  moral  character,  or  lay  the  founda- 
tion for  impeachment.  The  rules  which  apply  to  other  witnesses  in  that 
regard  apply  with  equal  force  to  him.  State  v.  Phelps,  5  S.  D.  480,  69  N. 
W.  471;  Shepard  v.  Parker,  36  N.  Y.  517;  People  v.  Clark,  102  N.  Y.  736, 
8  N.  E.  38;  State  v.  Red,  53  la.  69,  4  N.  W.  831;  Norris  v.  State,  87  Ala. 
85,  6  South.  371;  U.  S.  v.,  Wood,  4  Dak.  455,  33  N.  W.  59;  People  v.  Hite 
(Utah),  33  Pac.  254;  Rice  Cr.  Ev.  344-352,  and  notes. 

CONSPIRACY— OVERT  ACTS— PROOF.  §  7383  Comp.  Laws; 
§  8194  Rev.  Codes  N.  D.  Upon  a  trial  for  conspiracy,  in  a  case 
where  an  overt  act  is  necessary  to  constitute  the  offense,  the 
defendant  cannot  be  convicted  unless  one  or  more  overt  acts  be 
expressly  alleged  in  the  indictment,  nor  unless  one  or  more  of 
the  acts  alleged  be  proved;  but  any  other  overt  act,  not  alleged 
in  the  indictment  may  be  given  in  evidence.  (Sec.  355,  C.  Cr. 
Proc. ) 

[Sec.  8194,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  werds  "in- 
formation or"  precede  the  word  ''indictment."  (Sec.  355,  C.  Cr.  Proc,  am'd 
Rev.  Comers.)]  ♦ 

Levisee,  p.  1326. 

TREASON— TWO  WITNESSES— CONFESSION— ALLEGATIONS.  § 
8193  Rev.  Codes  N.  D.  Upon  a  trial  for  treason  the  defend- 
ant cannot  be  convicted  unless  upon  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  upon  his  confession  in  open 
court;  nor  can  evidence  be  admitted  of  an  overt  act  not  express- 
ly charged  in  the  information  or  indictment;  nor  can  the  de- 
fendant be  convicted  unless  one  or  more  overt  acts  are  express- 
ly charged  therein.     (Adopted  through  Rev.  Com'rs.) 

The  following  provision  is  found  in  Sec.  19,  Constitution  of  N.  D.:  "No 
person  shall  be  convicted  of  treason  unless  on  the  evidence  of  two  witnesses 
to  the  same  overt  act,  or  confession  in  open  court." 

ACCOMPLICE,  EVIDENCE  OF  —  CORROBORATION.  §  7384 
Comp.  Laws;  §  8195  Rev.  Codes  N.  D.  A  conviction  cannot 
be  had  upon  the  testimony  of  an  accomplice  unless  he  be  cor- 
roborated by  such  other  evidence  as  tends  to  connect  the  de- 
fendant with  the  commission  of  the  offense,  and  the  corrobora- 
tion is  not  sufficient  if  it  merely  show  the  commission  of  the 
offense,  or  the  circumstances  thereof.  (Sec.  356,  C.  Cr. 
Proc. ) 


388  CODE  OF  CRIMINAL  PROCEDURE. 

Levisee,  p.  1326. 

Consult    sec.  7379,    Comp.    Laws;  sec.  8188,  Elev.  Codes,  siipra. 

Accomplice,  What  Corroboration  Necessary  For  Conviction  on  Tes- 
timony of.  The  evidence  of  an  accomplice  otherwise  competent  is  admis- 
sible, and  when  corroborated  by  the  testimony  of  other  witnesses,  forcibly 
tending  to  connect  defendant  with  the  commission  of  the  offense  charged,  ife 
sufficient  to  sustain  a  conviction.  State  v.  Phalps,  5  S.  D.  480,  59  N.  W. 
471.  Same — Corroboration  Must  Tend  to  Support.  The  corroborating 
evidence  required  by  this  section  is  not  necessarily  such  evidence  as  will  of 
itself  support  a  conviction,  and  thus  render  that  of  the  accomplice  superflu- 
ous or  redundant,  but  it  is  evidence  that  tends  to  support  or  strengthen 
that  of  the  accomplice  in  the  respect  that  "it  tends  to  connect  ths  defend- 
ant with  the  commission  of  the  crime."'     State  v.  Hicks  et  al, S.  D , 

60  N.  W.  66;  People  v.  Everhardt,  104  N.  Y.  591,  11  N.  E,  62;  People  v. 
Elliott,  106  N.  Y.  288,  12  N.  E.  602;  People  v.  McLean,  84  Cal.  480,  24  Pac. 
320;  People  v.  Cloonan,  50  Cal.  449;  Ross  v.  State,  74  Ala.  532;  State  v. 
Thornton,  26  la.  79;  Smith  v.  Com.  (Ky.),  17  S.  W.  182;  1  Greenl.  Ev.,  sec. 
381  and  note;  Rose.  Cr.  Ev.,  p.  120;  Com.  v.  Holmes,  127  Mass.  424.  Same 
— Other  Substantial  Evidence.  The  law  is  complied  with  if  there  is  some 
other  substantial  evidence  fairly  tending  "to  connect  the  defendant  with 
the  commission  of  the  crime,"  so  that  his  conviction  will  not  rest  alone 
upon  the  evidence  of  the  accomplice.  State  v.  Hicks  et  al,  supra,  and 
above  cases  there  cited.  Same— Improper  Instruction.  It  was  not  error 
in  the  trial  court  to  refuse  an  instruction  containing  the  following:  "The 
purpose  of  the  statute  of  this  state  upon  this  subject  is  to  prohibit  a  convic- 
tion unless  there  is  some  evidence  entirely  exclusive  of  that  of  the  accom- 
plice, which  of  itself,  and  without  the  aid  of  that  of  the  accomplice,  estab- 
lishes the  guilt  of  the  defendants  beyond  reasonable  doubt."  State  v. 
Hicks  et  al,  supra;  Malachi  v.  State,  89  Ala.  134,  8  South  104;  State  v.  Al- 
len, 57  la.  431,  10  N.  W.  805;  State  v.  Townsend  (Ore.),  23  Pac.  968;  State  v. 
Van  Winkle  (la  ),  45  N.  W.  388. 

No  Conviction  Without  Corroboration  of.  In  this  state  no  person 
can  be  convicted  on  the  uncorroborated  testimony  of  an  accomplice.  The 
corroboration  must  come  from  some  source  independent  of  the  accomplice. 
But  it  is  not  necessary  that  the  corroborating  evidence  should  be  sufficient 
in  itself  to  support  a  conviction.  It  is  enough  if  it  tends  to  connect  the  ac- 
cused with  the  commission  of  the  offense.  Must  Tend  to  Connect  Ac- 
cused. It  must,  however,  tend  to  connect  accused  with  the  commission  of 
the  crime.  Evidence  corroborating  the  accomplice  as  to  the  fact  that  a 
crime  had  been  committed,  or  with  respect  to  the  fact  that  the  accomplice 
is  guilty  thereof,  will  not  satisfy  the  requirements  of  the  statutes.  State  v. 
Kent,  4  N.  D.  577,  62  N.  W.  631;  People  v.  Plath,  100  N,  Y.  590,  3  N.  E.  790; 
State  V.  Russell  (la.),  58  N.  W.  890. 


THE  TRIAL,  389 


Accomplice   May    Swear    to   Instructions    From    Accused,    When. 

Instructions  given  by  the  accused  to  the  accomplice  touching  the  story  the 
latter  was  to  tell  in  explanation  of  the  killing  may  be  sworn  to  by  the  ac- 
complice; and  it  is  not  error  for  the  court  to  receive  in  evidence  a  book  in 
which  such  instructions  were  written  down  by  the  accomplice,  when  the 
latter  swears  he  wrote  them  down  as  they  were  given  to  him  by  the  accused, 
and  under  his  direction.  State  v.  Kent,  4  N.  D.  577,  62  N.  W.  631;  Swift  v. 
Applebone,  23  Mich.  252;  R.  R.  Co.  v.  Shenk  (III.  Sup.),  23  N.  E.  436;  Com. 
V.  Kepper,  114  Mass.  278.  Translation  of  Written  Instructions.  Nor  was 
it  error  for  the  court  to  allow  the  accomplice,  a  Bohemian,  to  translate  into 
English  these  written  instructions.     State  v.  Kent,  supra. 

Accomplice — Cross-Examination  of^Great  Xiatitude.  Great  lati- 
tude should  be  allowed  in  the  cross  examination  of  an  accomplice.  It  was 
error  for  the  court  to  refuse  to  allow  counsel  for  accused  to  ask  the  accomp- 
lice, who  had  by  his  own  testimony,  made  out  a  case  of  murder  against  him- 
self, whether  he  expected  to  be  hung.  State  v.  Kent,  4  N.  D.  577,  62  N.  W. 
631;  Whart.  Cr.  Ev.,  sec.  444;  1  Am.  &  Eng.  Ency.  Law,  78;  Lee  v.  State, 
21  Ohio  St.  151.  Held,  further,  it  was  error  to  refuse  to  permit  counsel  for 
the  accused  to  prove,  as  bearing  upon  the  credibility  of  the  accomplice,  that 
no  proceedings  whatever  had  been  executed  against  him  for  the  murder  he 
had  confessedly  committed,  although  several  months  had  elapsed  since  he 
had  confessed  his  connection  with  the  crime.  State  v.  Kent,  supra;  People 
V.  Hare  (Mich.),  24  N.  W.  843. 

FALSE  PRETENSE,  WRITTEN  EVIDENCE  OF,  OR  TWO  WIT- 
NESSES—FALSELY  PERSONATING.  §  7385  Comp.  Laws;  §  8196 
Rev.  Codes  N.  D.  Upon  a  trial  for  having,  with  an  intent  to 
cheat  or  defraud  another  designedly,  by  any  false  pretense, 
obtained  the  signature  of  any  person  to  a  written  instrument, 
or  having  obtained  from  any  person  any  money,  personal  prop- 
erty or  valuable  thing,  the  defendant  cannot  be  convicted  if  the 
false  pretense  was  expressed  in  language  unaccompanied  by  a 
false  token  or  writing,  unless  the  pretense,  or  some  note  or 
memorandum  thereof,  be  in  writing,  either  subscribed  by,  or 
in  the  handwriting  of  the  defendant,  or  unless  the  pretense  be 
proven  by  the  testimony  of  two  witnesses,  or  that  of  one  wit- 
ness and  corroborating  circumstances.  But  this  section  does 
not  apply  to  prosecution  for  falsely  representing  or  personat- 
ing another,  and  in  such  assumed  character,  marrying  or  re- 
ceiving money  or  property.     (Sec.  357,  C.  Cr.  Proc. ) 

Levisee,  p.  1326. 


390  CODE  OP  CRIMINAL  PROCEDURE. 

SEDUCTION— CORROBORATING  EVIDENCE  TO  PROVE,  WHEN. 
§  7386  Comp.  Laws.  Upon  a  trial  for  inveigling,  enticing  or 
taking  away  an  unmarried  female  of  previous  chaste  character, 
under  the  age  of  twenty-five  years,  for  the  purpose  of  prostitu- 
tion, or  aiding  or  assisting  therein,  or. for  having,  under  prom- 
ise of  marriage,  seduced  and  had  illicit  connection  with  an  un- 
married female  of  previous  chaste  character,  the  defendant 
cannot  be  convicted  upon  testimony  of  the  person  injured  un- 
less she  is  corroborated  by  other  evidence  tending  to  connect 
the  defendant  with  the  commission  of  the  offense.  (Sec.  358, 
C.  Cr.  Proc.) 

SAME— SEDUCTION,  OR  ABORTION.  §  8197  Rev.  Codes  N.  D. 
Upon  a  trial  for  procuring  or  attempting  to  procure  an  abor- 
tion, or  aiding  or  assisting  therein,  or  for  inveigling,  enticing, 
or  taking  away  an  unmarried  female  of  previous  chaste  char- 
acter, under  the  age  of  twenty  years  for  the  purpose  of  pros- 
titution, or  aiding  or.  assisting  therein,  or  for  having,  under 
promise  of  marriage,  seduced  and  had  illicit  connection  with  an 
unmarried  female,  under  twenty  years  of  age,  of  previous 
chaste  character,  the  defendant  cannot  be  convicted  upon  the 
testimony  of  the  person  injured  unless  she  is  corroborated  by 
other  evidence.     (As  am'd  Rev.  Com'rs.) 

Levisee,  p.  1327. 

PROOF  OF  HIGHER  OFFENSE  THAN  CHARGED— DISCHARGE  OF 
JURY— DEFENDANT  HELD.  §  7387  Comp.  Laws.  If  it  appear  by 
the  testimony  that  the  facts  prov,ed  constitute  an  offense  of  a 
higher  nature  than  that  charged  in  the  indictment,  the  court 
may  direct  the  jury  to  be  discharged,  and  all  proceedings  on 
the  indictment  to  be  suspended,  and  may  order  the  defendant 
to  be  committed  or  continued  on,  or  admitted  to  bail,  to  answer 
any  new  indictment  which  may  be  found  against  him  for  the 
higher  offense.     (Sec.  359,  C.  Cr.  Proc.) 

SAME-BAIL  OF  WITNESSES,  WHAT  PROVISIONS  GOVERN.  § 
8198  Rev.  Codes  N.  D.  When  it  appears,  at  any  time  before 
verdict  or  judgment  that  a  mistake  has  been  made  in  charging 
the  proper  offense,    the  defendant  must  not  be  discharged,  if 


THE   TRIAL.  391 


there  appears  good  cause  to  detain  him  in  custody;  but  the 
court  must  commit  him,  or  require  him  to  give  bail  for  his  ap- 
pearance to  answer  to  the  offense,  and  may  also  require  the 
witnesses  to  give  bail  for  their  appearance.  The  provisions  of 
section  8097  of  this  code  as  to  the  manner  and  time  of  prosecu- 
tion, so  far  as  applicable,  shall  govern  the  further  proceedings 
under  this  section.     (As  am'd,  Rev.  Com'rs. ) 

Levisee,  p.  1327. 

Consult  next  two  sections. 

SAME— PLEA  FORMER  ACQUITTAL  OR  ONCE  IN  JEOPARDY,  NOT 
SUSTAINED  BY.  §  7388  Comp.  Laws.  If  an  indictment  for 
the  higher  offense  is  found  by  a  grand  jury  impaneled  within  a 
year  next  thereafter,  he  must  be  tried  thereon,  and  a  plea  of 
former  acquittal  to  such  last  found  indictment  is  not  sustained 
by  the  fact  of  the  discharge  of  the  jury  on  the  first  indictment. 
(Sec.  360,  C.  Cr.  Proc.) 

SAME.  §  8199  Rev.  Codes  N.  D.  Upon  the  trial  of  an  in- 
formation filed  or  indictment  found,  under  the  provisions  of 
the  last  section,  neither  a  plea  of  former  acquittal  nor  of  once 
in  jeopardy  shall  be  sustained  by  the  fact  of  the  discharge  of 
the  jury  on  the  first  information  or  indictment.  (As  am'd,  Rev. 
Com'rs. ) 

Levisee,  p.  1327. 

Consult  preceding,  and  next  section. 

NEW  PROCEEDINGS,  OR  RETRIAL  ON  ORIGINAL  CHARGE.  § 
7389  Comp.  Laws.  If  a  new  indictment  is  not  found  for  the 
higher  offense  within  a  year  as  aforesaid,  the  court  must  again 
proceed  to  try  the  defendant  on  the  original  indictment.  (Sec. 
361,  C.  Cr.  Proc. ) 

SAME.  §  8200  Rev.  Codes  N.  D.  If  a  new  information  is 
not  filed  or  a  new  indictment  found  within  the  times  limited  in 
section  8097  and  the  sections  therein  referred  to,  of  this  code, 
the  court  must  again  proceed  to  try  the  defendant  on  the  orig- 
inal charge.     (As  am'd  Rev.  Com'rs.) 

Levisee,  p.  1327. 

Consult  two  preceding  sections. 


392  CODE  OF  CRIMINAL  PROCEDURE. 

NO  JURISDICTION,  OR  NO  OFFENSE,  JURY  DISCHARGED.  § 
7390  Comp,  L'aws.  The  court  may  direct  the  jury  to  be  dis- 
charged, where  it  appears  that  it  has  not  jurisdiction  of  the  of- 
fense, or  that  the  facts  as  charged  in  the  indictment  do  not 
constitute  an  offense  punishable  by  law.  (Sec.  362,  C.  Cr. 
Proc. ) 

SAME.  §  8201  Rev.  Codes  N.  D.  The  court  may  direct 
the  jury  to  be  discharged,  when  it  appears  that  it  has  not  juris- 
diction of  the  offense,  or  that  the  facts  charged  in  the  infor- 
mation or  indictment  do  not  constitute  an  offense  punishable  by 
law.     (As  am'd  Rev.  Com'rs. ) 

Levisee,  p.  1327.  ♦ 

Consult  next  two  sections,  and  sec.  7395,  Comp.  Laws,  sec.  8207,  Rev. 
Codes,  infra. 

DISPOSITION  OF  DEFENDANT  IN  SUCH  CASE— REQUISITION. 
§  7391  Comp.  Laws.  If  the  jury  is  discharged  because  the 
court  has  not  jurisdiction  of  the  offense  charged  in  the  indict- 
ment, and  it  appears  that  it  was  committed  out  of  the  jurisdic- 
tion of  this  state,  the  court  may  order  the  defendant  to  be  dis- 
charged, or  to  be  detained  for  a  reasonable  time  specified  in 
the  order,  until  a  communication  can  be  sent  by  the  state's  at- 
torney to  the  chief  executive  officer  of  the  state,  territory,  or 
district  where  the  offense  was  committed.  (Sec.  363,  C.  Cr. 
Proc. ) 

SAME.  §  8202  Rev.  Codes  N.  D.  If  the  jury  is  discharged 
because  the  court  has  not  jurisdiction  of  the  offense  charged, 
and  it  appears  that  it  was  committed  out  of  the  jurisdiction  of 
this  state,  the  defendant  must  be  discharged,  unless  the  court 
orders  that  he  be  detained  for  a  reasonable  time,  to  be  specified 
in  the  order,  to  enable  the  state's  attorney  to  communicate 
with  the  chief  executive  officer  of  the  country,  state,  territory 
or  district  where  the  offense  was  committed.  (As  am'd  Rev. 
Com'rs. ) 

Levisee,  p.  1327. 

Consult  preceding,  and  next  section, 

SAME— OFFENSE  IN  ANOTHER  COUNTY— BAIL— CLERK'S  DU- 
TIES.    §  7392  Comp.  Laws;  §  8203  Rev.   Codes  N.  D.     If  the 


THE  TRIAL.  o93 


offense  was  committed  within  the  exclusive  jurisdiction  of  an- 
other county  of  this  state,  the  court  must  direct  the  defendant 
to  be  committed  for  such  time  as  it  deems  reasonable  to  await  a 
warrant  from  the  proper  county  for  his  arrest,  or  if  the  offense 
be  a  misdemeanor  only,  it  may  admit  him  to  bail  in  an  under- 
taking, with  suificient  sureties,  that  he  will,  within  such  time 
as  the  court  may  appoint,  render  himself  amendable  to  a  war- 
rant for  his  arrest  from  the  proper  county,  and  if  not  sooner 
arrested  thereon,  will  attend  at  the  office  of  the  sheriff  of  the 
county  where  the  trial  was  had,  at  a  time  particularly  specified 
in  the  undertaking,  to  surrender  himself  upon  the  warrant,  if 
issued,  or  that  his  bail  will  forfeit  such  sum  as  the  court  may 
fix,  and  to  be  mentioned  in  the  undertaking,  and  the  clerk  must 
forthwith  transmit  a  certified  copy  of  the  indictment,  and  all 
the  papers  in  the  action  filed  with  him,  to  the  state's  attorney 
of  the  proper  county,  the  expense  of  which  transmission  is 
chargeable  to  that  county.     (Sec.  364,  C.  Cr.  Proc. ) 

[Sec.  8203,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  term  "the 
court  may  direct"  is  used  instead  of  "the  court  must  direct,"  and  all  after 
the  words  "and  to  be  mentioned  in  the  undertaking-"  is  omitted  from  sec. 
8203,  but  is  brought  into  a  special  section  following.  (As  am'd.  Rev. 
Com'rs.)] 

SAME,  AS  TO  CLERK'S  DUTIES.  §  8204  Rev.  Codes  N.  D. 
In  the  cases  provided  for  in  the  last  section,  the  clerk  must 
forthwith  transmit  a  certified  copy  of  the  information  or  indict- 
ment and  of  all  the  papers  filed  in  the  action,  to  the  proper 
county,  the  expense  of  which  transmission  is  chargeable  to 
that  county.     (Sec.  364,  C.  Cr.  Proc,  am'd  Rev.  Com'rs.) 

Levisee,  p.  1328. 

Consult  two  preceding  sections,  and  next  two  sections. 

DISCHARGED,  BAIL  EXONERATED,  WHEN.  §  7393  Comp. 
Laws;  §  8205  Rev.  Codes  N.  D.  If  the  defendant  is  not  ar- 
rested on  a  warrant  from  the  proper  county,  he  must  be  dis- 
charged from  custody,  or  his  bail  in  the  action  be  exonerated, 
or  money  deposited  instead  of  bail  refunded,  as  the  case  may 
be,  and  the  sureties  in  the  undertaking,  as  mentioned  in  the 
last  section,  must  be  discharged.     (Sec.  365,  C.  Cr.  ProC;.) 


394  CODE  OF  CRIMINAL  PROCEDURE. 

[Sec.  8206,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words 
"mentioned  in  section  8203"  are  used  instead  of  "mentioned  in  the  last  sec- 
tion."   (As  am^d,  Rev.  Com  Vs.)] 

Levisee,  p.  1328. 

Consult  two  preceding  sections,  and  next  two  sections. 

PROCEEDINGS,  IF  DEFENDANT  REARRESTED.  §  7394  Comp. 
Laws;  §  8206  Rev.  Codes  N.  D.  If  he  is  arrested,  the  same 
proceedings  must  be  had  thereon  as  upon  the  arrest  of  a  de- 
fendant in  another  county,  on  a  warrant  of  arrest  issued  by  a 
magistrate.     (Sec.  366,  C.  Cr.  Proc.) 

Levisee,  p.  1328. 

Consult  three  preceding  sections,  and  next  section. 

See,  as  to  proceedings  on  arrest  in  another  county,  sec.  7126,  Comp. 
Laws,  Levisee,  p.  1289. 

DEFENDANT  AGAIN  DISCHARGED,  OR  BAIL  EXONERATED,  WHEN 
—ANOTHER  INDICTMENT,  WHEN.  §  7395  Comp.  Laws.  If  the 
jury  be  discharged  because  the  facts  as  charged  do  not  consti- 
tute an  offense  punishable  by  law,  the  court  must  order  that 
the  defendant,  if  in  custody,  be  discharged  therefrom,  or  if  ad- 
mitted to  bail  that  his  bail  be  exonerated,  or  if  he  have  depos- 
ited money  Instead  of  bail,  that  the  money  deposited  by  refund- 
ed to  him,  unless  in  his  opinion  a  new  indictment  can  be 
framed,  upon  which  the  defendant  can  be  legally  convicted,  in 
which  case  it  may  direct  that  the  case  be  resubmitted  to  the 
same  or  another  grand  jury.     (Sec.  367,  C.  Cr.  Proc.) 

[Sec.  8207,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "may 
direct  that  the  case  be  resubmitted  to  the  same  or  another  grand  jury"  are 
substituted  by  the  words  "may  direct  the  state's  attorney  to  file  a  new  in- 
formation, or  (if  an  information  cannot  be  sooner  legally  filed)  direct  that 
the  case  be  submitted  to  the  same  or  another  grand  jury,  and  the  provisions 
of  sections  8087  or  8097  of  this  code,  so  far  as  applicable,  as  to  time  and 
manner  of  the  prosecution,  shall  govern  the  further  proceedings  under  this 
section."    (As  am'd  Rev.  Com'rs. )] 

Levisee,  p.  1328. 

Consult  sec.  7390,  Comp.  Laws,  sec.  8201,  Rev.  Codes,  supra. 

COURT  ADVISES  ACQUITTAL,  WHEN— JURY  NOT  BOUND  BY.  § 
7396  Comp.  Laws;  §  8208  Rev.  Codes  N.  D.  If,  at  any  time 
after  the  evidence  on  either  side  is  closed,  the  court  deem  it 
insufficient  to  warrant  a  conviction,    it  may  advise  the  jury  to 


THE   TRIAL.  395 


acquit  the  defandant.  But  the  jury  are  not  bound  by  the  ad- 
vice, nor  can  the  court,  for  any  cause,  prevent  the  jury  from 
giving  a  verdict.     (Sec.  368,  C.  Cr.  Proc. ) 

Levisee,  p.  1328. 

Consult  sees.  7370,  7372,  7374,  Corap.  Laws,  sees.  8175,  8181,  8183, 
Rev.  Codes,  s^ipra,  and  sec.  7405,  Comp.  Laws,  sec.  8217,  Rev.  Codes,   infra. 

Power  of  Court  to  Advise  Acquittal  on  Insufficient  Evidence — De- 
fendant's Bights — Q,uery.  Whether,  when  the  evidence  is  insufficient  to 
warrant  a  conviction,  the  power  given  to  the  court  to  "advise  an  acquittal" 
is  discretionary  or  obligatory;  whether  defendant  may  ask  such  instruc- 
tion, and  failing  to  do  so,  waive  any  right  to  present  the  question  after  ver- 
dict; whether  "insufficiency  of  the  evidence,"  is  in  all  cases  a  question  of 
law.  query.     Territory  v.  Stone,  2  Dak.  155,  4  N.  W.  697. 

JURY  MAY  VIEW  PLACE— OFFICER'S  OATH.  §  7397  Comp. 
Laws;  §  8209  Rev.  Codes.  When,  in  the  opinion  of  the  court, 
it  is  proper  that  the  jury  should  view  the  place  in  which  tHe 
offense  was  charged  to  have  been  committed,  or  in  which  any 
other  material  fact  occurred,  it  may  order  the  jury  to  be  con- 
ducted in  a  body,  in  the  custody  of  proper  officers,  to  the  place, 
which  must  be  shown  to  them  by  a  person  appointed  by  the 
court  for  that  purpose,  and  the  officers  must  be  sworn  to  suffer 
no  person  to  speak  to  or  communicate  with  the  jury,  nor  to  do 
so  themselves,  on  any  subject  connected  with  the  trial,  and  to 
return  them  into  court  without  unnecessary  delay,  or  at  a  speci- 
fied time.     (Sec.  369,  C.  Cr.  Proc. ) 

Levisee,  p.  1328. 

JUROR  KNOWING  FACT,  SWORN  AS  WITNESS.'  §  7398 
Comp.  Laws;  §  8210  Rev.  Codes  N.  D.  If  a  juror  have  any 
personal  knowledge  respecting  a  fact  in  controversy  in  a  cause, 
he  must  declare  it  in  open  court  during  the  trial.  If,  during 
the  retirement  of  a  jury,  a  juror  declare  a  fact,  which  could  be 
evidence  in  the  cause,  as  of  his  own  knowledge,  the  jury  must 
return  into  court.  In  either  of  these  cases,  the  juror  making 
the  statement  must  be  sworn  as  a  witness  and  examined  in  the 
presence  of  the  parties.     (Sec.  370,  C.  Cr.  Proc.) 

Levisee,  p.  1329. 

JURY,  CUSTODY  AND  CONDUCT  OF— OFFICER'S  OATH.  §  7399 
Comp.  Laws;  §  8211  Rev.   Codes  N.   D.     The  jurors  sworn  to 


396  COt)E  OP  CRIMINAL  PROCEDURE.   ^ 

try  the  indictment,  may,  at  any  time  before  the  submission  of 
the  cause  to  the  jury,  in  the  discretion  of  the  court,  be  permit- 
ted to  separate,  or  to  be  kept  in  charge  of  proper  officers.  The 
officers  must  be  sworn  to  keep  the  jurors  together  until  the 
next  meeting  of  the  court,  to  suffer  no  person  to  speak  to  or 
communicate  with  them,  nor  to  do  so  themselves,  on  any  sub- 
ject connected  with  the  trial,  and  to  return  them  into  court  at 
the  next  meeting  thereof .     (Sec.  371,  C.  Cr.  Proc. ) 

[Sec.  8211,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  in  lieu  of  the 
words  "an  indictment,"  the  words  "a  criminal  action"  are  used.  (As  am'd. 
Rev.  Com'rs.)] 

Levisee,  p.  1329. 

Consult  next  section,  and  sec.  7406,  Comp.  Laws,  sec.  8218,  Rev.  Codes, 
infra,  and  decisions  thereunder. 

,  COURT  ADMONISHES  JURY— OPINION.  §  7400  Comp.  Laws; 
§  8212  Rev.  Codes  N.  D,  The  jury  mast  also,  at  each  adjourn- 
ment of  the  court,  whether  permitted  to  separate  or  kept  in 
charge  of  officers,  be  admonished  by  the  court  that  it  is  their 
duty  not  to  converse  among  themselves  or  with  any  one  else 
on  any  subject  connected  with  the  trial,  or  to  form  or  ex- 
press any  opinion  thereon,  until  the  case  is  finally  submitted 
to  them.     (Sec.  372,  C.  Cr.  Proc.) 

Levisee,  p.  1329. 

Consult  preceding  section,  and  references  there  given. 

SICK  JUROR  DISCHARGED— NEW  ONE  — RETRIAL  §  7401 
Comp.  Laws.  §  8213  Rev.  Codes  N,  D.  If,  before  the  conclu- 
csion  of  a  trial,  a  juror  becomes  sick,  so  as  to  be  unable  to  per- 
form his  duty,  the  court  may  order  him  to  be  discharged.  In 
that  case  a  new  juror  may  be  sworn,  and  the  trial  begin  anew, 
or  the  jury  may  be  discharged,  and  a  new  jury  then  or  after- 
ward impaneled.     (See.  373,  C.  Cr.  Proc.) 

Levisee,  p.  1329. 

See,  as  to  sick  juror  on  trial  of  civil  cases,  sec.  5055,  Comp.  Laws,  sec. 
5439,  Rev.  Codes,  N.  D.,  p.  28,  ante. 

Sick  Juror— Discharge  of  Jury,  Retrial,  or  Another  Panel— Per- 
emptory Challenges.  When  during  the  trial  and  before  the  case  is  finally 
submitted  a  juror  becomes  sick  and  unable  to  sit  further  in  the  case,  the 
court  may  order  such  juror  discharged,  and  a  new  one  sworn  to  complete 
the  panel,  and  that  the  trial  begin  anew;  or  the  court  may  discharge  the 


THE   TRIAL.  397 


entire  jury,  and  then  or  subsequently  impanel  another  to  try  the  case. 
State  V.  Hasledahl,  2ND.  521,  52  N.  W.  315;  People  v.  Stewart,  64  Cal.  60, 
28  Pac.  112;  People  v.  Brady,  72  Cal.  490,  14  Pac.  202;  Whart.  Cr.  PI.  & 
Pr.,  note  to  sec.  508;  Jenks  v.  State,  39  Ind.  9;  Territory  v.  O'Hare,  1  N.  D. 
30,  44  N.  W.  1003.  When  the  first  course  is  pursued,  the  prisoner  is  not 
thereby  entitled  to  again  exercise  all  peremptory  challenges  given  him  by 
statute,  or  to  so  challenge  any  one  of  the  eleven  remaining  jurors;  and  in 
procuring  the  new  juror  the  prisoner  may  exercise  only  such  of  his  per- 
emptory challenges  as  he  has  not  already  exhausted  in  procuring  the  other 
eleven.     State  v.  Hasledahl,  supra,  and  cases   there  cited. 

Former  Jeopardy,  When  Plea  of  Not  Good.  Where  a  juror  was 
discharged  during  a  trial,  on  account  of  sickness,  and  a  new  jury  was  im- 
paneled, defendant  cannot  successfully  interpose  the  plea  of  former  jeop- 
ardy based  upon  the  proceedings  on  the  former  partial  trial.  State  v.  Hasle- 
dahl,2  N.  D.  521,  52  N.  W.  315;  Whar.  Cr.  Pr.  &  PI.  (9th  ed.)  sec.  508. 

MURDER—BURDEN  OF  PROOF  ON  DEFENDANT,  WHEN.  § 
7402  Comp.  Laws;  §  8214  Rev.  Codes  N.  D.  Upon  a  trial 
for  murder,  the  commission  of  the  homicide  by  the  defendant 
being  proved,  the  burden  of  proving  circumstances  of  mitiga- 
tion, or  that  justify  or  excuse  it,  devolves  upon  him,  unless  the 
proof  on  the  part  of  the  prosecution  tends  to  show  that  the 
crime  committed  only  amounts  to  manslaughter,  or  that  the  de- 
fendant was  justifiable  or  excusable-     (Sec.  374,  C.   Cr,  Proc. ) 

Levisee,  p.  1329. 

Consult  sec.  7370,  Comp.  Laws;  sec.  8175,  Rev.  Codes,  supra,  and  de- 
cisions under  heads  of  '"Instructions,"  and  "Evidence,"  there  cited. 

BIGAMY— PROOF  OF  MARRIAGE— COHABITATION.  §  7403 
Comp.  Laws;  §  8215  Rev.  Codes  N.  D.  Upon  a  trial  for  big- 
amy, it  is  not  necessary  to  prove  either  of  the  marriages  by  the 
register,  certificate  or  other  record  evidence  thereof,  but  the 
same  may  be  proved  by  such  evidence  as  is  admissible  to  prove 
a  marriage  in  other  cases,  and  when  the  second  marriage  took 
place  out  of  this  state,  proof  of  that  fact,  accompanied  with 
proof  of  cohabitation  thereafter  in  this  state,  is  sufficient  to 
sustain  the  charge.     (Sec.  375,  C.  Cr.  Proc  ) 

Levisee,  p.  1329. 

FORGERY— ATTEMPTING  TO  PASS— PROOFOF INCORPORATION. 
§  7404  Comp.  Laws;  §  8216  Rev.  Codes  N.  D.  Upon  a  trial 
for  forging  any  bill  or  note  purporting  to  be  the  bill  or  note  of 


398  CODE  OF  CRIMINAL  PROCEDURE. 

an  incorporated  company  or  bank,  or  for  passing,  or  attempt- 
ing to  pass  or  having  in  possession  with  intent  to  pass,  any  such 
forged  bill  or  note,  it  is  not  necessary  to  prove  the  incorpora- 
tion of  such  bank  or  company  by  the  charter  or  act  of  incor- 
poration, but  it  may  be  proved  by  general  reputation,  and  per- 
sons of  skill  are  competent  witnesses  to  prove  that  such  bill  or 
note  is  forged  or  counterfeited.  (Sec.  376,  C.  Cr.  Proc.) 
Levisee,  p.  1830. 

CHARGE  TO  JURY,  REQUISITES  OF— REQUESTED  CHARGE- 
SIGNING  DECISION— REFUSAL  OF  PART  §  7405  Comp.  Laws;  § 
8217  Rev.  Codes  N.  D.  In  charging  the  jury,  the  court  must 
state  to  them  all  matters  of  law  which  it  thinks  necessary  for 
their  information  in  giving  their  verdict,  and  if  it  state  the 
testimony  of  the  case,  it  must  in  addition  inform  the  jury  that 
they  are  the  exclusive  judges  of  all  questions  of  fact.  Either 
party  may  present  to  the  court  any  written  charge,  and  re- 
quest that  it  be  given.  If  the  court  thinks  it  correct  and  per- 
tinent, it  must  be  given;  if  not,  it  must  be  refused.  Upon  each 
charge  presented  and  given  or  refused  the  court  must  endorse 
or  sign  its  decision.  If  part  of  any  written  charge  be  given 
and  part  refused  the  court  must  distinguish,  showing  by  the  en- 
dorsement or  answer  what  part  of  each  charge  was  given  and 
what  part  refused.     (Sec.  377,  C.  Cr.  Proc. ) 

[Sec.  8217,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  all  after  the 
words  "or  sign  its  decision"  are  omitted.  (Sec.  377,  C.  Cr.  Proc.  am'd  Rev. 
Com'rs.)] 

Levisee,  p.  1330. 

Consult  sees.  7370,  7372,  7374,  7396,  Comp.  Laws,  sees.  8175,  8181,8183, 
8208,  Rev.  Codes,  supra,  and  decisions  thereunder. 

Instruction,  What  Evidence  to  Consider— When  Not  Error.  Where 
a  prosecution  for  selling  intoxicating  liquors  rested  on  the  testimony  of  the 
prosecuting  witness,  the  court  charged  the  jury  that  the  only  evidence  they 
could  consider  as  to  the  intoxicating  character  of  the  liquor  was  that  of  this 
witness,  "who  claims  that  he  tasted  it  the  day  he  bought  it,  and  before  it 
left  his  hands  and  control,"  but  informed  them  ihat  they  had  "a  right  to 
believe  or  disbelieve  his  testimony,"  and  the  matter  was  purely  one  one  of 
fact  for  them,  held,  there  was  no  error  committed  under  this  section.  Ter- 
ritory v.  Pratt,  6  Dak.  483,  43  N.  W.  711.  Evidence  Merely  Reducing 
Orade — Instruction  to  Disregard.    It  is  proper  to  instruct  the  jury  that 


THE    TRIAL.  399 


evidence  which  only  tends  to  reduce  the  grade  of  the  offense,  is  not  to  be 
considered  by  them  as  tending  to  excuse  or  justify  the  killing.  Territory 
V.  Gade,  2  Dak.  125,  2  N.  W.  477;  People  v.  Sanches,  24  Cal.  17;  People  v. 
Estrand,  49  Cal.  171;  People  v.  Turley,  50  Cal.  469;  People  v.  King,  27  Cal. 
507;  People  v.  Welch,  49  Cal.  174. 

JURY  AFTER  CHARGE— REFRESHMENTS— OFFICER'S  OATH.  § 
7406  Comp.  Laws;  §  8218  Rev.  Codes  N.  D.  After  hearing 
the  charge,  the  jury  may  either  decide  in  court,  or  may  retire 
for  deliberation.  If  they  do  not  agree  without  retiring,  one 
or  more  officers  must  be  sworn  to  keep  them  together  in  some 
private  and  convenient  place,  without  food  or  drink,  except 
bread  and  water,  unless  otherwise  ordered  by  the  court,  and 
not  to  permit  any  person  to  speak  to  or  communicate  with  them, 
nor  do  so  themselves,  unless  it  be  by  order  of  the  court,  or  to 
ask  them  whether  they  have  agreed  upon  a  verdict,  and  to  re- 
turn them  into  court  when  they  have  so  agreed,  or  when  ord- 
ered by  the  court.     (Sec.  378,  C.  Cr.  Proc.) 

[Sec.  8218,  Rev.  Codes,  N.  D.,  is  the  corresponding  section,  and  is  the 
same,  except  that  the  words  "without  refreshment  except  water"  are  substi- 
tuted for  the  words  ''without  food  or  drink,  except  bread  and  water,"  and 
the  word  "himself"  is  used  in  placeof  "'themselves."  (Sec.  378,  C.  Cr.  Proc, 
am'd  Rev.  Com'rs.)] 

Levisee,  p.  1330. 

Consult  sec.  7399,  7400,  Comp.  Laws,  sec.  8211,  8212,  Rev.  Codes,  supra. 

See,  as  to  retirement  of  jury  in  civil  cases,  sec.  5053,  Comp.  Laws,  sec. 
5437,  Rev.  Codes,  N.  D.  pp.  27-8,  ante. 

Temporary  Separation  of,  When  Not  Reversible  Error.  Where  a 
temporary  separation  of  the  jury,  during  its  deliberations,  occurred,  "not 
to  exceed  five  minutes  at  the  outside,"  occasioned  by  an  alarm  of  fire,  and 
nothing  is  shown  to  create  suspicion  of  any  improper  approach  to  any  juror, 
the  refusal  of  the  trial  court  to  grant  a  new  trial  on  that  account  will  not 

be  reversed.     State  v.  Church, S.  D ,  60  N.  W.  143;  People  v.  Bem- 

merly,  98  Cal.  299,  33  Pac.  263.  (Peterson  v.  Siglinger,  3  S.  D.  255,  52  N. 
W.  1060, 'explained.)  Where  on  their  return  from  dinner  one  of  the  juroi's 
stepped  into  a  grocery,  picked  up  a  package  of  tobacco,  holding  it  to  view  of 
a  clerk,  the  bailiff  and  other  jurors  standing  at  the  door,  no  word  having 
been  spoken,  and  another  juror  in  passing  another  grocery  stepped  in  and 
ordered  goods  sent  home,  the  officer  and  other  jurors  remaining  at  the  door, 
no  conversation  occurring  relative  to  the  case  on  trial,  the  refusal  of  a  new 
trial  on  that  account  will  not  be  disturbed.  State  v.  Church,  supra.  "WTien 
Harmless  Irregularity.     Although  a  court  may  in  its  discretion   permit  a 


400  CODE  OF  CRIMINAL  PROCEDURE. 

jury  in  a  criminal  cause  to  separate  during  the  intervals  of  the  trial,  they 
should  be  kept  together  after  a  final  submission  of  the  case;  and  where  a 
separation  occurs  before  verdict  is  reached  but  after  retirement  to  the  jury 
room,  and  is  of  such  a  character  that  one  or  more  of  the  jurors  might  have 
been  improperly  influenced  by  others,  and  there  is  nothing  reliable  to  show 
that  such  influence  has  not  been  exercised  to  the  prejudice  of  the  accused,  the 
verdict  should  be  vacated  and  the  case  retired.  Kellam,  J.,  dissenting  on  the 
ground  that  it  is  conclusively  shown  by  the  record  that  defendant  was  not 

prejudiced  thereby.     State  v.  Church  (on   rehearing) S.  D ,  64  N. 

W.  152;  People  v.  Backus,  5  Cal.  275;  Cantwell  v.  State,  18  Ohio  St.  477; 
State  V.  Harris,  12 Nev.  114;  Jumpertzv,  People,  21  111.  374;  State  v.  Par- 
rant,  16  Minn.  178  (Gil.  157);  Com.  v.  Roby,  12  Pick.  496;  State  v.  Garig 
(La.),  8  South.  934;  State  v.  Harrison,  (W.  Va.),  15  S.  E.  982;  Keenan  v. 
State,  8  Wis  132;  State  v.  Cucuel,  31  N.  J.  Law  249;  State  v.  Prescott,  7  N. 
H.  287;  Abb.  Tr.  Brief  (Cr.),  180.  Separation  of  Joiry,  But  no  Outside 
Communication.  Where,  in  a  prosecution  for  felony,  the  jury  separated 
after  the  case  had  been  Anally  submitted  to  them,  but  it  appeared  that  none 
of  the  jurors  had  had  any  communication  with  any  one  during  their  separa- 
tion respecting  the  matter  under  conside»-ation,  held,,  their  verdict  should 
not  be  disturbed.  Territory  v.  King,  6  Dak.  131,  50  N.  W.  623;  People  v. 
Bonney,  19  Cal.  427;  Territory  v.  Chenowith,  5  Pac.  532;  State  v.  Fertig, 
30  N.  W,  633;  People  v.  Ransom,  7  Wend.  493;  Eastwood  v.  People,  3 
Park.  44;  Thom.  &  M.  Juries,   396. 

WHEN  CONVICTION  OR  ACQUITTAL  A  BAR— DEGREES.  §  8219 
Rev.  Codes  N.  D.  When  the  defendant  has. been  convicted  or 
acquitted  upon  an  information  or  indictment  for  an  offense  con- 
sisting of  different  degrees,  the  conviction  or  acquittal  is  a  bar 
to  another  information  or  indictment  for  the  offense  charged, 
or  for  any  lower  degree  of  that  offense,  or  for  an  offense  neces- 
sarily included  therein.     (Adopted  through  Rev.  Com'rs.) 

Consult  sees.  7387,  7388,  Comp.  Laws,  sees.  8198,  8199,  Rev.  Codes' 
supra. 

DEFENDANT  MAY  BE  COMMITTED,  ON  APPEARANCE  FOR  TRIAL 
§  7407  Comp.  Laws;  §  8220  Rev.  Codes  N.  D.  When  a  de- 
fendant who  has  given  bail  appears  for  trial,  the  court  may,  in 
its  discretion,  at  any  time  after  his  appearance  for  trial,  order 
him  to  be  committed  to  the  custody  of  the  proper  officer  of  the 
county,  to  abide  the  judgment  or  further  order  of  the  court, 
and  he  must  be  committed  and  held  in  custody  accordingly. 
(Sec.  379,  C.  Cr.  Proc.) 


JURY,    AFTER  CAUSE   SUBMITTED.  401 

Levisee,  p.  1330, 

Consult  sec.  7392,  Comp.  Laws,  sec.  8203,  Rev.  Codes,  supra. 

STATE'S  ATTORNEY,  SUBSTITUTE  FOR,  APPOINTED,  WHEN,  § 
7408  Comp.  Laws;  sec.  8221  Rev.  Codes  N.  D.  If  the  state's 
attorney  fails,  or  is  unable  to  attend  at  the  trial,  the  court 
must  appoint  some  attorney  at  law  to  perform  the  duties  of 
the  state's  attorney  on  such  trial.     (Sec.  380,  C.  Cr.  Proc. ) 

Levisee,  p.  1330. 

See,  as  to  appointment  of  state's  attorney  in  South  Dakota,  sec.  434, 
Comp.  Laws;  and  as  to  appointment  of  a  deputy  state's  attorney,  see,  chap. 
108,  Laws  1891,  S.  D.,  pp.  247-8.  As  to  appointment  of  assistant  state's  at- 
torney, and  of  special  counsel  to  assist  the  state's  attorney  in  North  Dakota, 
see  sees.  1987,  1988,  Rev.  Codes,  N.  D. 


CHAPTER   XXX. 

Chap.  3,  Title  8,  Code  Criminal  Procedure,  S.  D. 

Art.  3,  Chap.  10,  Code  Criminal  Procedure,  N.  D. 

conduct  of  the  jury  after  the  cause  is  submitted  to 

THEM. 

ROOM  PROVIDED  FOR  JURY— WHEN  COURT  MAY  ORDER— EX- 
PENSE OF  §  7409  Comp.  Laws;  §  8222  Rev.  Codes  N.  D.  A 
room  must  be  provided  by  the  board  of  commissioners  of  a  county 
for  the  use  of  the  jury,,  upon  their  retirement  for  deliberation, 
with  suitable  furniture,  fuel,  lights  an^  stationery.  If  the 
commissioners  neglect,. the  court  may  order  the  sheriff  to  do  so, 
and  the  expense  incurred  by  him  in  carrying  the  order  into  ef- 
fect, when  certified  by  the  court,  are  a  county  charge.  (Sec. 
381,  C.  Cr.  Proc. ) 

Levisee,  p.  1331. 

Consult  next  section. 

FOOD  AND  LODGING  FOR  JURY,  ON  COURT'S  ORDER.     §  7410 
Comp.  Laws;  §  8223  Rev.  Codes  N.    D.     While   the  jury   are 
kept  together,  either  during  the  progress  of   the  trial  or  after 
26— TP 


402  CODE  OF  CRIMINAL  PROCEDURE. 

their  retirement  for  deliberation,  they  must  be  provided  by  the 
sheriff,  upon  the  order  of  the  court,  at  the  expense  of  the 
county,  with  suitable  and  sufficient  food  and  lodging.  (Sec. 
382,  Cr.  Cr.  Proc.) 

Levisee,  p.  1331. 

Consult  preceding  section.  * 

WHAT  PAPERS  JURY  MAY  TAKE.  §  7411  Comp.  Laws;  § 
8224  Rev.  Codes  N.  D.  Upon  retiring  for  deliberation,  the 
jury  may  take  with  them  all  papers  which  have  been  received 
as  evidence  in  the  cause,  or  copies  of  such  parts  of  public  rec 
ords  or  private  documents,  given  in  evidence,  as  ought  not,  in 
the  opinion  of  the  court,  to  be  taken  from  the  person  having 
them  in  possession.     (Sec.  383,  C.  Cr.  Proc.) 

[Sec.  8224,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  after  the  words 
"all  papers"  the  following  words  are  inserted:  "(except  depositions)";  and 
the  following  words  appear  after  the  concluding  word  "possession"  in 
the  original  section:  "They  may  also  take  with  them  such  parts  of  the 
written  instructions  as  the  court  may  direct  and  notes  of  the  testimony,  or 
other  proceedings  on  the  trial,  taken  by  themselves,  or  any  of  them,  but 
none  taken  by  any  other  person."    (Am'd  Rev.  Com'rs.)  J 

Levisee,  p.  1331. 

See,  as  to  what  papers  the  jurors  may  take  in  civil  cases,  sec.  5052, 
Comp.  Laws,  sec.  5436,  Rev.  Codes,  p.  27,  ante. 

Transcript  of  Justice's  Docket  on  Preliminary  Examination,  Tak- 
en by  Jury — Error.  On  a  prosecution  for  perjury,  alleged  to  have  been 
committed  while  defendant  was  testifying  in  his  own  behalf  on  a  prelimi- 
nary examination  for  selling  intoxicating  liquors,  the  court,  over  an  objec- 
tion of  relevancy  and  incompetency,  permitted  the  prosecution  to  put  in  evi- 
dence and  the  jury  to  take  with  them  on  retiring  for  deliberation  a  tran- 
script of  the  committing  magistrate's  docket  showing  the  proceedings  on 
the  examination,  and  his  finding  that  there  was  sufficient  cause  to  believe 
the  defendant  guilty  of  the  offense.  Held,  error.  Territory  v.  Jones,  6 
Dak.  85,  50  N.  W.  528. 

DISAGREEMENT— FURTHER  INSTRUCTIONS,  OR  INFORMATION. 
§  7412  Comp  Laws;  §  8225  Rev.  Codes  N.  D.  After  the  jury 
have  retired  for  deliberation,  if  there  be  a  disagreement  be- 
tween them  as  to  any  part  of  the  testimony,  or  if  they  desire 
to  be  informed  on  a  point  of  law  arising  in  the  cause,  they  must 
require  the  officer  to  conduct  them  into  court.  Upon  their  be- 
ing brought  into  court,   the  information  required  must  be  giv- 


JURY,  AFTER  CAUSE  SUBMITTED.  403 

en  in  the  presence  of,  or  after  notice  to  the  state's  attorney  and 
the  defendant  or  his  counsel,   or  after  they  have  been  called. 
(Sec.  384,  C.  Cr.  Proc.) 
Levisee,  p.  1331. 

Additional  Instructions  After  Retirement,  Proper.  A  jury  that 
has  retired  to  deliberate  upon  their  verdict  may  request  and  receive  addi- 
tional instructions  on  the  Sabbath,  or  the  judge  may  on  that  day,  upon  his 
motion,  have  the  jury  brought  in  and  re-instruct  them,  for  the  purpose  of 
correcting  a  supposed  error  or  mistake  in  his  former  charge .  People  v. 
Odell,  1  Dak.  189,  46  N.  W.  601.  For  a  case  in  which  the  jury,  after  being 
out  all  night,  came  in  and  were  further  instructed,  see  Territory  v.  Taylor, 
1  Dak.  553-4  (appendix.) 

SICK  JUROR,  JURY  DISCHARGED.  §  7413  Comp.  Laws; 
§  8226  Rev.  Codes  N.  D.  If,  after  the  retirement  of  the  jury, 
one  of  them  become  so  sick  as  to  prevent  the  continuance  of 
his  duty,  or  any  other  accident  or  cause  occur  to  prevent  their 
being  kept  together  for  deliberation,  the  jury  may  be  dis- 
charged.    (Sec.  385,  C.  Cr.  Proc.) 

Levi«ee,  p.  1331. 

Consult  next  section,  and  sec.  7401,  Comp.  Laws,  sec.  8213,  Rev.  Codes, 
N.  D.,  preceding  chapter. 

See  State  v.  Hasledahl,  2  N.  D.  521,  52  N.  W.  315,  for  a  case  where  a 
juror  became  sick  during  the  trial  and  before  the  case  was  submitted  to  the 
jury;  cited  under  sec.  7401,  Comp.  Laws,  sec.   8213,    Rev.    Codes  N.   D.,   in 

preceding  chapter.     See  also.   State   v.   Church,    S.  D ,  64  N.  W. 

152,  cited  under  sec.  7406,  Comp.  Laws,  sec.  8218,  Rev,  Codes  N.  D.,  preced- 
ing chapter. 

DISCHARGE  OF  JURY,  NOT  TILL  AGRGEEMENT,  UNLESS.  § 
7414,  Comp.  Laws;  §  8227  Rev.  Codes  N.  D.  Except  as  pro- 
vided in  the  last  section,  the  jury  cannot  be  discharged  after 
the  cause  is  submitted  to  them  until  they  have  agreed  upon 
their  verdict,  and  rendered  it  in  open  court,  unless  by  the  con- 
sent of  both  parties  entered  upon  the  minutes,  or  unless  at  the 
expiration  of  such  time  as  the  court  deems  proper,  it  satisfac- 
torily appear  that  there  is  no  reasonable  probability  that  the 
jury  can  agree.     (Sec.  386,  C.  Cr.  Proc. ) 

Levisee,  p.  1331. 

Consult  two  preceding  sections. 

VERDICT  PREVENTED,  CAUSE  RETRIED— TIME  OF  RETRIAL  § 
7415  Comp.  Laws;  §  8228  Rev.  Codes  N.  D.     In  all  cases  where 


404  CODE  OF  CRIMINAL  PROCEDURE. 

a  jury  are  discharged  or  prevented  from  giving  a  verdict,  by 
reason  of  an  accident  or  other  cause,  except  where  the  defend- 
ant is  discharged  from  the  indictment  during  the  progress  of 
the  trial,  or  after  the  cause  is  submitted  to  them,  the  cause 
may  be  again  tried  at  the  same  or  another  term,  as  the  court 
may  direct.     (Sec.  387,  C.  Or.  Proc. ) 

Sec.  8228,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  word  "when" 
is  substituted  for  the  word  "where,"  as  it  occurs  in  the  original  section, 
and  the  words  "information  or"  occur  before  the  word  "indictment." 
(Am'd  Rev.  Com'rs.)] 

Levisee,  p.  1331. 

Consult  preceding  section. 

See  State  v.  Church,    ....   S.  D ,   64  N.  W.  152.     Also  State  v. 

Hasledahl,  2  N.  D.  521,  52  N.  W.  315,  as  to  the  course  to  be  pursued  in  case 
of  a  sick  juror;  cited  under  sec.  7401,  Com  p.  Laws,  sec.  8213,  Rev.  Codes,  N. 
D.,  preceding  chapter. 

ADJOURNMENT  WHILE  JURY  ABSENT,  BUT  OPEN  FOR  WHAT— 
FINAL  ADJOURNMENT.  §  7416  Comp.  Laws;  §  8229  Rev.  Codes 
N.  D.  While  the  jury  are  absent  the  court  may  adjourn  from 
time  to  time  as  to  other  business,  but  it  is  nevertheless  deemed 
open  for  every  purpose  connected  with  the  cause  submitted  to 
them,  until  a  verdict  is  rendered  or  the  jury  discharged.  A 
final  adjournment  of  the  court  discharges  the  jury.  (See  388, 
389,  C.  Cr.  Proc.  am'd.) 

Levisee,  p.  1332. 

Consult  three  preceding  sections. 

See  People  v.  Odell,  1  Dak.  189,  46  N.  W.  601,  relative  to  calling  in 
the  jury,  re-instructing  them,  etc.;  cited  under  sec.  7412,  Comp.  Laws,  sec. 
8225,  Rev.  Codes,  N.  D.,  supra. 


CHAPTER  XXXI. 

Chap.  4,  Title  8,  Code  Criminal  Procedure,  S.  D. 

Art.  4,  Chap.  10,  Code  Criminal  Procedure,  N.  D. 

the  verdict. 

RETURN   OF  VERDICT— WHEN  JURY  DISCHARGED    WITHOUT 

VERDICT— PROCEDURE.     §  7417  Comp.  Laws;  §  8230  Rev.  Codes 


THE  VERDICT.  405 


N.  D.  When  the  jury  have  agreed  upon  their  verdict,  they 
must  be  conducted  into  court  by  the  officer  having  them  in 
charge.  Their  names  must  then  be  called,  and  if  all  do  not 
appear,  the  rest  must  be  discharged  without  giving  a  verdict. 
In  that  case  the  cause  must  be  again  tried,  at  the  same  or  an- 
other term.  (Sec.  390,  C.  Cr.  Proc. ) 
Levisee,  p.  1332. 
■  Consult  sec.  7419,  Comp.  Laws,  sec.  8232,  Rev.  Codes,  infra. 

PRESENCE  OF  DEFENDANT— FELONY— MISDEMEANOR.  §  7418 
Comp.  Laws;  §  8231  Rev.  Codes  N.  D.  If  the  indictment  is 
for  a  felony,  the  defendant  must,  before  the  verdict  is  received, 
appear  in  person.  If  it  is  for  a  misdemeanor,  the  verdict  may, 
in  the  discretion  of  the  court,  be  rendered  in  his  absence.   (Sec. 

391,  C.  Cr.  Proc.) 

[Sec.  8231,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  appear  before  the  word  "indictment."     (Am'dRev.  Com'rs.)] 

Presence  of  Defendant — Motion  to  Quash..  The  personal  presence 
of  the  defendant,  though  necessary  at  the  rendition  of  the  verdict,  is  ^ot 
necessary  on  the  hearing  of  a  motion  to  quash  the  indictment.  Territory 
V.  Gay,  2  Dak.  125,  2  N.  W.  477. 

PROCEDURE  WHEN  JURY  APPEAR.  §  7419  Com.  Laws;  § 
8232  Rev.  Codes  N.  D.  When  the  jury  appear,  they  must  be 
asked,  by  the  court  or  the  clerk,  whether  they  have  agreed 
upon  their  verdict,  and  if  the  foreman  answers  in  the  affirma- 
tive, they  must,  on  being  required,    declare   the  same.     (Sec. 

392,  C.  Cr.  Proc.) 
Levisee,  p.  1332. 

Consult  sec.  7417,  Comp.  Laws,  sec.  8230,  Rev.  Codes,  supra. 

VERDICT,  GENERAL  OR  SPECIAL— LIBEL  §  7420  Comp.  Laws; 
§  8233  Rev.  Codes  N.  D.  The  jury  may  either  render  a  gen-, 
eral  verdict,  or  where  they  are  in  doubt  as  to  the  iSgal  effect  of 
the  facts  proved,  they  may,  except  upon  an  indictment  for  li- 
bel, find  a  special  verdict.     (Sec.  393,  C.  Cr.  Proc.) 

[Sec.  8233,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  word  "when" 
is  substituted  for  the  word  "where,"  and  the  words  "information  or"  appear 
before  the  word  "indictment."    (Am'd  Rev.  Com'rs.)  ] 

Consult  next  four  sections. 

See,  State  v.  Johnson,  3N.  D.  150,  54  N.  W.  547,  as  to  form  of  verdict; 
cited  under  sec.  7429,  Comp.  Laws,  sec.  8244,  Rev.  Codes,  N.  D.,  infra. 


406  CODE  OF  CRIMINAL  PROCEDURE. 

ORAL  VERDICT,  UNLESS  REQUIRED  IN  WRITING— BLANK  VER- 
DICTS PREPARED.  §  8234  Rev.  Codes  N.  D.  The  verdict  of  the 
jury  may  be  rendered  orally  or  in  writing  as  the  jury  may 
elect,  unless  the  court  at  the  time  the  case  is  submitted  to  the  jury 
requires  that  it  be  rendered  in  writing.  When  the  court  so  re- 
quires the  clerk  of  the  court  shall,  under  the  discretion  of  the 
court,  provide  blank  verdicts  of  suitable  form  for  any  verdict  the 
jury  may  return  in  the  action  and  said  blank  verdicts  shall  be 
be  taken  by  the  jury  when  it  retires.  (Adopted  through  Rev. 
Com'rs. )  ^ 

Consult  preceding  section. 

GENERAL  VERDICT,  DEFINED— INSANE  DEFENDANT— VAR- 
IANCE. §  7421  Comp.  Laws;  §  8235  Rev.  Codes  N.  D.  A  gen- 
eral verdict  upon  a  plea  of  not  guilty,  is  either  "guilty"  or  "not 
guilty,"  which  imports  a  conviction  or  acquittal  of  the  offense 
charged  in  the  indictment.  Upon  a  plea  of  a  former  conviction 
or^cquittal  of  the  same  offense  it  is  either  '  'for  the  state, "  or  '  'for 
the  defendant."  When  the  defendant  is  acquitted  on  the  ground 
tha  the  was  insane  at  the  time  of  the  commission  of  the  act  charg- 
ed, the  verdict  must  be  '  'not  guilty  by  reason  of  insanity. "  When 
the  defendant  is  acquitted  on  the  ground  of  variance  between 
the  indictment  and  the  proof,  the  verdict  must  be  '  'not  guilty 
by  reason  of  variance  between  indictment  and  proof. "  (Sec. 
394,  C.  Cr.  Proc.) 

Levisee,  p.  1332. 

Consult  preceding  section,  sec.  7426,  Comp.  Laws,  sec.  8240,  Rev. 
Codes,  infra,  and  last  section  in  this  chapter. 

[Sec.  8235,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  appear  before  the  word  "indictment;"  and  after  the  words 
."acquittal  of  the  same  offense"  the  words  "or  once  in  jeopardy"  appear. 
(Am'dRev.  Cotn'rs.)] 

See  People  v.  Odell,  1  Dak.  189,  46  N.  W.  601,  cited  under  sec.  7429, 
Comp.  Laws,  sec.  8244,  Rev.  Codes,  N.  D.,  infra. 

SPECIAL  VERDICT,  CONCLUSIONS  OF  FACT  §  7422  Comp. 
Laws;  §  8236  Rev.  Codes  N.  D.  A  special  verdict  is  that  by 
which  the  jury  find  the  facts  only,  leaving  the  judgment  to  the 
court.  It  must  present  the  conclusions  of  fact,  as  established 
by  the  evidence  and  not  the  evidence  to  prove  them,  and  the 


THE   VERDICT.  407 


conclusions  of  fact  must  be  so  presented  as  that  nothing  re- 
mains to  the  court  but  to  draw  conclusions  of  law  upon  them. 
(Sec.  395,  C.  Cr.  Proc.) 

Levisee,  p.  1333. 

Consult  sec.  7420,  Comp.  Laws,  sec.  8233,  Rev.  Codes,  supra;  and  next 
two  sections. 

See  State  v.  Johnson,  3  N.  D.  150,  54  N.  W.  547,  cited  under  sec.  7429, 
Comp.  Laws,  sec.  8244  Rev.  Codes,  infra. 

SPECIAL  VERDICT  WRITTEN— ENTRY  AND  READING  OF.  § 
7423  Comp.  Laws;  §  8237  Rev.  Codes  N.  D.  The  special  ver- 
dict must  be  reduced  to  writing  by  the  jury,  or  in  their  pres- 
ence entered  upon  the  minutes  of  the  court,  read  to  the  jury, 
and  agreed  to  by  them  before  they  are  discharged.  (Sec.  396, 
C.  Cr.  Proc.) 

Levisee,  p.  1333. 

Consult  proceding,  and  following  section. 

FORM  OF  SPECIAL  VERDICT  §  7424  Comp.  Laws;  §  8238 
Rev.  Codes  N.  D.  The  special  verdict  need  not  be  in  any  par- 
ticular form,  but  is  sufficient  ^f  it  presents  intelligibly  the  facts 
found  by  the  jury.     (Sec.  397,  C.  Cr.  Proc.) 

Levisee,  p.  1333. 

Consult  two  preceding  sections. 

[See  State  v.  Johnson,  3  N.  D.  150,  54  N.  W.  547,  cited  uuder  sec.  7429, 
Comp.  Laws,  sec.  8244,  Rev.  Codes,  in/ra.] 

ARGUMENT  OF  SPECIAL  VERDICT  §  7425  Comp.  Laws;  § 
8239  Rev.  Codes  N.  D.  The  special  verdict  may  be  brought  to 
argument  by  either  party,  upon  two  day's  notice  to  the  other, 
at  the  same  or  another  term  of  court.     (Sec.  398,  C.  Cr.  Proc. ) 

Levisee,  p.  1333. 

Consult  preceding,  and  next  section. 

JUDGMENT  ON  SPECIAL  VERDICT— PLEA  NOT  GUILTY- 
FORMER  CONVICTION  OR  ACQUITTAL  §  7426  Comp.  Laws,  §  8240 
Rev.  Codes  N.  D.  The  court  must  give  judgment  upon  the 
special  verdict  as  follows: 

1,  If  the  plea  is  not  guilty,  and  the  facts  prove  the  de- 
defendant  guilty  of  the  offense  charged  in  the  indictment,  or  of 
any  other  offense  of  which  he  could  be  convicted  undei:  the  in- 


408  CODE  OF  CRfMINAL  PROCEDURE. 

dictment,  judgment  must  be  given  accordingly;  but  if  other- 
wise, judgment  of  acquittal  must  be  given, 

2.  If  the  plea  is  a  former  conviction  or  acquittal  of  the 
same  offense,  the  court  must  give  judgment  of  conviction  or  ac- 
quittal, according  as  the  facts  prove  or  fail  to  prove  the  for- 
mer conviction  or  acquittal.     (Sec.  399,  C.  Cr.  Proc. ) 

[Sec.  8240,  Rev.  (./odes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  appear  in  subdivision  1  before  the  word  "indictment,"  and 
the  words  "or  once  in  jeopardy"  appear  in  subdivision  2  after  the  words 
'•same  offense;"  and  in  subdivision  3  the  words  "the  plea"  are  substituted 
for  the  words  "the  former  conviction  or  acquittal."    (Am'd  Rev.  Com'rs.)  1 

Levisee,  p.  1333. 

Consult  four  preceding  sections,  sec.  7421,  Comp.  Laws,  sec.  8235,  Rev. 
Codes,  supra,  and  next  section. 

See  State  v.  Johnson,  3  N.  D.  150,  54  N.  W.  547,  cited  under  sec.  7429, 
Comp.  Laws,   sec.  8244,  Rev.  Codes,  infra. 

Former  Conviction  or  Acquittal — Must  Stand  on  That  Alone. 
Where  a  defendant  enters  a  plea  of  former  conviction  or  acquittal  alone,  he 
elects  to  stand  on  such  plea,  and  if  the  issue  is  found  against  him,  he  will 
not  be  permitted  to  enter  a  plea  of  not  guilty,  but  the  court  must  give  judg- 
ment of  conviction  or  acquittal  according*  to  the  fact.  People  V.  Briggs,  1 
Dak.  289,  46  N.  W.  451;  2  Whart.  Cr.  Law,  sec.  572;  2  Bieh.  Crim.  Proc, 
sees.  755,  782-83;  1  Archbold  Cr.  PI.  &  Pr.  371. 

WHEN  NEW  TRIAL  ORDERED.  §  7427  Comp.  Laws;  §  8241 
Rev.  Codes  N.  D.  If  the  jury  do  not,  in  a  special  verdict,  prO'- 
nounce  affirmatively  or  negatively  on  the  facts  necessary  to  en- 
able the  court  to  give  judgment,  or  if  they  find  the  evidence  of 
facts  merely,  and  not  the  conclusions  of  fact  from  the  evidence, 
as  established  to  their  satisfaction,  the  court  must  order  a  new 
trial.     (Sec.  400,  C.  Cr.  Proc.) 

Levisee,  p.  1333. 

See  State  v.  Jonhson,  3  N.  D.  150,  54  N.  W.  547,  cited  under  sec.  7429, 
Comp.  Laws,  sec.  8244,  Rev.  Codes,  infra. 

DEGREE  MUST  BE  FOUND.  §  7428  Comp.  Laws;  §  8242  Key. 
Codes  N.  D.  Whenever  a  crime  is  distinguished  into  degrees, 
the  jury,  if  they  convict  the  defendant,  must  find  the  degree  of 
the  crime  of  which  he  is  guilty,     (Sec.  401,  C.  Cr.  Proc.) 

[Sec.  8242,  Rev.  Codes,  N.  D.,  is  the  same,  with  the  following  addition 
at  the  end  of  the  original  section:  "Whenever  a  verdict  of  guilty  is  ren- 
dered against  the  accused  upon  a  prosecution  for  homicide,   the  jury  must 


THE   VERDICT.  409 


line  the  degree  thereof  and  determine  by  their  verdict  the  punishment  to  be 
inflicted  within  the  limits  prescribed  by  law.     (Am"d  Rev.  Com'rs.)] 
Levisee,  p.  1333. 

DEGREE— ANY  INCLUDED  IN  CHARGE,  FOUND.  §  7429  Comp. 
Laws;  §  8244  Rev.  Codes  N.  D.  The  jury  may  find  the  de- 
fendant guilty  of  any  offense,  the  commission  of  which  is  nec- 
essarily included  in  that  with  which  he  is  charged  in  the  indict- 
ment, or-of  an  attempt  to  commit  the  offense.  (Sec.  402,  C. 
Cr.  Proc.) 

[Sec.  8244,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  appear  before  the  word  "indictment."  (Am'd  Rev. 
Com'rs.] 

Levise*.  p.  1333. 

Assault  And  Battery  With  Deadly  Weapon — Conviction  of  Intent 
to  do  Bodily  Harm.  On  a  trial  for  assault  and  battery  cjmin  t  el  with  a 
deadly  weapon,  "with  intent  to  kill,"  the  accused,  under  sec.  6510,  Comp. 
Laws,  may  be  convicted  of  an  assault  and  battery,  armed  with  a  dangerous 
weapon,  "with  intent  to  do  bodily  harm."  The  commission  of  the  latter  is 
necessarily  included  in  the  commission  of  the  former,  under  sec.  7429,  Comp. 
Laws.  State  v.  Johnson,  3  N.  D.  150,  54  N.  W.  547;  State  v.  White,  41  la. 
816;  State  v.  Connor,  (la),  13  N.  W.  327;  People  v.  Davidson,  5  Cal.  134; 
People  V.  English,  30  Cal.  216.  People  v.  Congleton,  44  Cal.  93;  People  v. 
Lightner,  49  Cal.  226;  O'Leary  v.  People,  4  Park.  Crim.  R.,  187;  State  v, 
Burke,  (Mo.),  2  S.  W.  '10;  Beckwith  v.  People,  26  111.  500;  People  v.  Van- 
ard,  6  Cal.  562;  Sullivan  v.  State,  44  Wis.  595;  Territory  v.  Conrad,  1  Dak. 
348,  46  N.  W.  605.  Assault,  Intent  to  Kill,  Charge  of  Permits  Convic- 
tion for  Simple  Assault.  On  an  indictment  charging  an  assault,  or  as- 
sault and  battery  with  intent  to  kill,  defendant  may  be  convicted  either  of 
the  crime  charged,  or  of  an  assault,  or  assault  and  battery  with  intent  to  do 
bodily  harm,  or  for  assault  and  battery,  or  for  simple  assault.  Territory  v. 
Conrad,  1   Dak.  348,  46  N.  W.  605. 

Assault  With  Intent  to  Kill,  Verdict,  to  Do  Bodily  Harm — Mis- 
demeanor. A  verdict  on  an  indictment  for  "an  assault  upon  and  for  shoot- 
ing one  F.  McM.  with  a  pistol,  commonly  known  as  a  revolver,  loaded  with 
gunpowder  and  leaden  bullets,  with  intent  to  kill,"  finding  "the  defendant 
guilty  of  Dassault  with  intent  to  do  bodily  harm,  and  without  justifiable  or 
excusable  cause,"  is  a  conviction  for  a  misdemeanor,  and  will  not  sustain  a 
judgment  as  for  felony.  Territory  v.  Conrad,  1  Dak.  348,  46  N.  W.  605; 
Hursey  v.  People,  47  Barb.  503;  O'Leary  v.  People,  4  Park.  Cr.  Rep.  187; 
People  V.  Davidson,  5  Cal.  134;  People  v.  Nugent,  4  Cal.  341;  People  v.  En- 
glish, 30  Cal.  215;  People  v.  Murat,  45  Cal.  281.  Assault  With  Intent,  Di- 
visible Into  Degrees — Proof  of  OflFense  Included  in  Higher.     The  crime 


410  CODE  OF  CRIMINAL  PROCEDURE. 

of  assault,  or  assault  and  battery  with  intent  to  kill,  is  divisible  into  de- 
grees, and  defendant  may  be  convicted  of  the  offense  charged,  or  of  any 
lesser  offense  necessarily  embraced  therein.  People  v.  Odell,  1  Dak.  189, 
46  N.  W.  601.  It  is  enough  to  prove  so  much  of  the  indictment  sis  shows 
that  defendant  has  committed  a  crime  therein  specified,  or  one  necessarily 
included  in  and  forming  a  constituent  element  of  the  higher  offense 
charged.  Id.  Assault  With  Weapon,  Includes  Assault,  Not  Battery. 
The  offense  of  an  aggravated  assault  with  a  dangerous  weapon,  committed 
with  intent  to  do  bodily  harm,  as  defined  by  sec.  6510,  Comp.  Laws,  neces- 
sarily includes  in  its  commission  a  simple  assault,  but  does  not  necessarily 
include  the  offense  of  assault  and  battery.  State  v.  Marcks,  3  N  D.  582,  58 
N.  W.  25;  State  v.  Johnson,  3  N.  D.  150,  54  N.  W.  547.  It  was  therefore  er- 
ror to  overrule  a  demurrer  to  the  information  interposed  on  the  ground 
that  it  stated  more  than  one  offense.  State  v.  Marcks,  supra.  The  jury 
were  instructed  that  if  the  evidence  failed  to  show  beyond  a  reasonable 
doubt  that  defendants  were  guilty  of  the  aggravated  assault  charged,  but 
did  show  them  guilty  of  assault  and  battery,  they  could  find  defendants 
guilty  of  the  latter  offense.  Verdict  of  guilty  of  assault  and  battery.  Mo- 
tion in  arrest,  overruled.  Held,  error,  construing  sec.  7429,  Comp.  Laws, 
State  V.  Marcks,  3  N.  D.  532,  58  N.  W.  25;  Turner  v.  Muskegon,  Circuit 
Judge  (Mich.),  50  N.  W.  310;  Territory  v.  Dooley  (Mont.),  1  Pac.  747;  Peo- 
ple v.  Keefer,  18  Cal.  637;  State  v.  White,  45  Iowa  325. 

Ambigruous  Verdict — "As  Charged."  The  following  words  found  in 
a  verdict,  "  as  charged  in  the  information,"  are  ambiguous,  and  cannot  be 
resorted  to  for  the  purpose  of  showing  that  the  assault  and  battery  was 
committed  with  a  dangerous  weapon,  in  view  of  the  fact  that  the  effect  of 
the  verdict  is  to  acquit  the  accused  of  the  offense  "charged  in  the  informa- 
tion."    State  V.  Johnson,  3  N.  D.  150,  54  N.  W.  547. 

PREVIOUS  CONVICTION  CHARGED,  FACT  MUST  BE  FOUND- 
FORM  OF  VERDICT.  §  8243  Rev.  Codes  N.  D.  Whenever  the 
fact  of  a  previous  conviction  of  another  offense  is  charged  in 
the  information  or  indictment,  the  jury  if  they  find  a  verdict 
of  guilty  of  the  offense  of  which  the  defendant  is  charged,  must 
also,  unless  the  answer  of  the  defendant  admits  the  charge, 
find  whether  or  not  he  has  suffered  such  previous  conviction. 
In  addition  to  the  verdict  of  ''guilty"  the  verdict  of  the  jury 
upon  a  charge  of  previous  conviction  may  be  "we  also  find  the 
charge  of  previous  conviction  true,"  or  "we  also  find  the 
charge  of  previous  conviction  not  true, "  as  they  find  that  the 
defendant  has  or  has  not  suffered  such  conviction.  (Adopted 
through  Rev.  Com'rs. ) 


THE   VERDICT.  411 


Consult  sees.  7421,  7426,  Comp.  Laws,  sees.  8235,  8240,  Rev.  Codes, 
supra. 

SEVERAL  DEFENDANTS,  VERDICT  AS  TO  PART.  §  7430  Comp. 
Laws;  §  8245  Rev.  Codes  N.  D.  On  an  indictment  against  sev- 
eral, if  the  jury  cannot  agree  upon  a  verdict  as  to  all,  they 
may  render  a  verdict  as  to  those  in  regard  to  whom  they  do 
agree,  on  which  a  judgment  must  be  entered  accordingly,  and 
the  case  as  to  the  rest  may  be  tried  by  another  ^mvj.  (Sec. 
403,  C.  Cr.  Proc.) 

[Sec.  8245,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  appear  before  the  vsrord  "indictment."    (Am'd  Rev.  Com'rs.)] 

Levisee,  p.  1334. 

VERDICT  OF  GUILTY,  NOT  CONFORMING  TO  LAW,  RECONSID- 
ERED—PUNISHMENT, VERDICT  AS  TO  LIMIT  OF— JUDGMENT.  § 
8246  Rev.  Codes  N.  D.  If  the  jury  return  a  verdict  of  guilty 
against  the  accused,  the  court  must  before  it  is  accepted  ascer- 
tain whether  it  conforms  to  the  law  of  the  case.  If  in  the 
opinion  of  the  court,  the  verdict  does  not  conform  to  the  re- 
quirements of  the  law  of  the  case,  the  court  must  with  proper 
instructions  as  to  the  error,  direct  the  jury  to  reconsider  the 
verdict,  and  the  verdict  cannot  be  accepted  or  recorded  until 
it  is  rendered  in  proper  form.  But,  if  the  punishment  imposed 
by  the  jury  in  the  verdict,  in  cases  where  the  jury  are  author- 
ized by  law  to  determine  the  punishment,  is  not  in  conformity 
to  the  law  of  the  case  in  that  regard,  the  court  may  proceed  as 
follows: 

1.  If  the  punishment  imposed  by  the  jury  in  the  verdict 
is  under  the  limit  prescribed  by  law,  for  the  offense  of  which 
the  defendant  is  found  guilty,  the  court  may  receive  the  ver- 
dict and  thereupon  render  judgment  and  pronounce  sentence 
for  the  lowest  limit  prescribed  by  law  in  such  cases;  or 

2,  If  the  punishment  imposed  by  the  jury  in  the  verdict 
is  greater  than  the  highest  limit  prescribed  by  law,  for  the  of- 
fense of  which  the  defendant  is  found  guilty,  the  court  must 
disregard  the  excess  and  render  judgment  and  pronounce  sen- 
tence according  to  the  highest  limit  prescribed  by  law  in  the 
particular  case.     (Adopted  through  Rev.  Com'rs. ) 


412  CODE  OF  CRIMINAL  PROCEDURE. 

Consult  next  section. 

COURT  EMPOWERED  TO  REDUCE  PUNISHMENT.  §  8247  Rev. 
Codes  N.  D.  The  court  has  the  power  in  all  cases  of  convic- 
tion, to  reduce  the  extent  or  duration  of  the  punishment  im- 
posed by  a  jury,  if  in  its  opinion  the  conviction  is  proper,  and 
the  punishment  imposed  is  greater  than  under  the  circumstan- 
ces of  the  case  ought  to  be  inflicted.  (Adopted  through  Rev. 
Com'rs. ) 

Consult  preceding  section;  sec.  7427,  sec.  8241,  Rev.  Codes,  supra\  sees. 
7431,  7432,  Comp.  Laws,  sees.  8248,  8249,  Rev.  Codes,  infra. 

RECONSIDERATION  OF  VERDICT,  WHEN  MISTAKING  LAW.  § 
§  7431  Comp.  Laws;  §  8248  Rev.  Codes  N.  D.  When  there  is 
a  verdict  of  conviction  in  which  it  appears  to  the  court  that 
the  jury  have  mistaken  the  law,  the  court  may  explain  the 
reason  for  that  opinion,  and  direct  the  jury  to  reconsider  their 
verdict,  and  if,  after  the  reconsideration,  they  return  the  same 
verdict,  it  must  be  entered.  But  when  there  is  a  verdict  of  ac- 
quittal, the  court  cannot  require  the  jury  to  reconsider  it. 
(Sec.  404,  C.  Cr.  Proc.) 

Levisee,  p.  1334. 

Consult  sec.  7427,  Comp.  Laws,  sec.  8241,  8246,  Rev.  Codes,  supra:, 
and  next  section. 

VERDICT  NEITHER  GENERAL  NOR  SPECIAL— RECONSIDERATION 
—PROCEDURE.  §  7432.  Comp.  Laws;  §  8249  Rev.  Codes  N.  D. 
If  the  jury  render  a  verdict  which  is  neither  a  general  nor  a 
special  verdict,  the  court  may,  with  proper  instructions  a.s  to 
the  law,  direct  them  to  reconsider  it,  and  it  cannot  be  recorded 
until  it  be  rendered  in  some  form  from  which  it  can  be  clearly 
understood  what  is  the  intent  of  the  jury,  whether  to  render  a 
general  verdict,  or  to  find  the  facts  specially,  and  to  leave  the 
judgment  to  the  court.     (Sec.  405,  C.  Cr.  Proc.) 

Levisee,  p.  1334. 

Consult  sees.  7421,  7422,  Comp.  Laws,  sees.  8235,  8236,  Rev.  Codes, 
snipra, 

PERSISTING  IN  INFORMAL  VERDICT,  WHEN  JUDGMENT  OF 
ACQUITTAL  §  7433  Comp.  Laws;  §  8250  Rev.  Codes  N.  D.  If 
the  jury  persist  in  finding  an  informal  verdict,   from   which, 


THE   VERDICT.  413 


however,  it  can  be  clearly  understood  that  their  intention  is  to 
find  in  favor  of  the  defendant  upon  the  issue,  it  must  be  en- 
tered in  the  terms  in  which  it  is  found,  and  the  court  must 
give  judgment  of  acquittal.  But  no  judgment  of  conviction 
can  be  given  unless  the  jury  expressly  find  against  the  defend- 
ant, upon  the  issue,  or  judgment  be  given  against  him  on  a 
special  verdict.     (Sec.  406,  C.  Cr.  Proc.) 

Levisee,  p.  1334. 

Consult   preceding  section. 

JURY  MAY  BE  POLLED— PROCEDURE.  §7434  Comp.  Laws; 
§  8251  Rev.  Codes  N.  D.  When  a  verdict  is  rendered,  and  be- 
fore it  is' recorded,  the  jury  maybe  polled  on  the  requirement  of 
either  party,  in  which  case  they  must  be  severally  asked 
whether  it  is  their  verdict,  and  if  any  one  answer  in  the  nega- 
tive, the  jury  must  be  sent  out  for  further  deliberation.  (Sec. 
407,  C.  Cr.  Proc. ) 

Levisee,  p.  1334. 

CLERK  RECORDS  VERDICT— JUROR  DISAGREEING— JURY  DIS- 
CHARGED, WHEN.  §  7435  Comp.  Laws;  §  8252  Rev.  Codes  N. 
D.  When  the  verdict  is  given,  and  is  such  as  the  court  may 
receive,  the  clerk  must  immediately  record  it  in  full  upon  the 
minutes,  and  must  read  it  to  the  jury  and  inquire  of  them 
whether  it  is  their  verdict.  If  any  juror  disagree,  the  fact 
must  be  entered  upon  the  minutes,  and  the  jury  again  sent  out; 
but  if  no  disagreement  is  expressed,  the  verdict  is  complete, 
and  the  jury  must  be  discharged  from  the  case.  (Sec.  408,  C. 
Cr.  Proc.) 

Levisee,  p.  1334. 

Consult  sec.  7431,  Comp.  Laws,  sec.  8246,  8248,  Rev.  Codes,  supra. 

JUDGMENT  OF  ACQUITTAL,  WHEN  DEFENDANT  DISCHARGED 
ON— DETENTION  FOR  NEW  INDICTMENT.  §  7436  Comp.  Laws;  § 
8253  Rev.  Codes  N.  D.  If  the  judgment  of  acquittal  is  given 
on  a  general  verdict,  and  the  defendant  is  not  detained  for  any 
other  legal  cause,  he  must  be  discharged  as  soon  as  judgment 
is  given,  excejjt  that  when  the  acquittal  is  for  a  variance  be- 
tween the  proof  and  the  indictment,  which  may  be  obviated  by 
a  new  indictment,  the  court  may  order  his  detention  to  the  end 


414  CODE  OF  CRIMINAL  PROCEDURE. 

that  a  new  indictment  may  be  preferred  in  the  same  manner 
and  with  like  effect  as  provided  in  section  7395.  (Sec.  409,  C. 
Cr.  Proc.) 

[Sec.  8253,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  precede  the  word  "indictment;"  and  in  lieu  of  the  words  "sec- 
tion 7395"  at  the  end,  the  words  "section  8097  and  the  sections  of  this  code 
therein  referred  to"  are  inserted.     (Am'd  Rev.  Com'rs)] 

Levisee,  p.  1334. 

VERDICT,  GUILTY,  DEFENDANT  REMANDED  OR  COMMITTED- 
BAIL  §  7437  Comp.  Laws;  §  8254  Rev.  Codes  N.  D.  If  a  gen- 
eral verdict  is  rendered  against  the  defendant,  or  a  special  ver- 
dict is  given,  he  must  be  remanded,  if  in  custody;  or  if  on  bail, 
he  may  be  committed  to  the  proper  officer  of  the  county,  to 
await  the  judgment  of  the  court  upon  the  verdict.  When  com- 
mitted, his  bail  is  exonerated,  or  if  money  is  deposited  instead 
of  bail,  it  must  be  refunded  to  the  defendant.  (Sec.  410,  C. 
Cr.Proc.) 

Levisee,  p.  1335.- 

Consult  sec.  7421,  Comp.  Laws,  sec.  8235,  Rev.  Codes,  supra. 

DEFENSE  OF  INSANITY,  FACT  MUST  BE  STATED  IN  VERDICT- 
DISCHARGE  OR  COMMITTAL  §  7438  Comp.  Laws;  §  8255  Rev. 
Codes  N.  D.  If  the  defense  is  the  insanity  of  the  defendant, 
the  jury  must  be  instructed,  if  they  acquit  him  on  that  ground, 
to  state  the  fact  with  their  verdict.  The  court  may  thereupon, 
if  the  defendant  is  in  custody,  and  they  deem  his  discharge 
dangerous  to  the  public  peace  or  safety,  order  him  to  be  com- 
mitted to  the  care  of  the  sheriff  until  he  becomes  sane.  (Sec. 
411,  C.  Cr.  Proc.) 

Levisee,  p.  1335. 

Consult  sec.  7421.  Comp.  Laws,  sec.  8235,  Rev.  Codes,  infra. 


CHAPTER    XXXII. 

Chap.  5,  Title  8,  Code  Criminal  Procedure,  S.  D. 
Art.  1,  Chap.  11,  Code  Criminal  Procedure,  N.  D. 


BILLS  OF  EXCEPTION — STATEMENT  OF  CASE.  415 

BILLS  OF  EXCEPTION— ST ATEIffENT  OF  CASE. 

MATTERS  DEFENDANT  MAY  EXCEPT  TO.  §  7439  Comp.  Laws; 
§  8262  Rev.  Codes  N.  D.  On  the  trial  of  an  indictment,  excep- 
tions may  be  taken  by  the  defendant  to  the  decision  of  the 
court  upon  a  matter  of  law  by  which  his  substantial  rights  are 
prejudiced,  and  not  otherwise,  in  any  of  the  following  cases: 

1.  In  disallowing  a  challenge  to  the  panel  of  the  jury,  or 
to  an  individual  juror  for  implied  bias. 

2.  In  admitting  or  rejecting  witnesses  or  testimony,  on  the 
trial  of  a  challenge  to  a  juror  for  actual  bias. 

3.  In  admitting  or  rejecting  witnesses  or  testimony,  or  in 
deciding  any  question  of  law,  not  a  matter  of  discretion,  or  in 
charging  or  instructing  the  jury  upon  the  law,  on  the  trial  of 
the  issue.     (Sec.  412  C.  Cr.  Proc. ) 

[Sec.  8262  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  words  "an 
indictment"  near  the  beginning  of  the  section  are  substituted  by  the  words 
"a  criminal  action  or  proceeding,"  and  all  after  the  words  "decision  of  the 
court"  in  that  part  of  the  section  preceding  subd.  1  is  omitted;  and  subd.  3 
is  as  follows: 

"3.  In  admitting  or  rejecting  witnesses  or  evidence  or  in  deciding  any 
matter  of  law,  not  purely  discretionary,  on  the  trial  of  the  issue."  (Am'd 
Rev.  Com'vs.)  ] 

Levisee,  p.  1335. 

Consult  next  section. 

Substantial  Rights,  Prejudice  to — Section  Construed.  In  State  v. 
Reddington, S.  D ,  64  N.  W.  170,  the  supreme  court,  in  consider- 
ing whether  the  substantial  rights  of  the  defendant  were  prejudiced  in  the 
case  before  it,  where  the  record  failed  to  show  an  arraignment  and  plea, 
construe  this  section,  and  say:  "By  injury  is  meant  effect  'upon  the  result.' 
This  is  the  well-defined  doctrine  of  our  statute,  which  allows  the  defendant 
to  except  'to  the  decision  of  the  court  upon  a  matter  of  law  by  which  his 
substantial  rights  are  prejudiced,  and  not  otherwise.'"  Citing  State  v. 
Greene,  66  la.  11,  23  N.  W.  154;  State  v.  Hayes,  67  la.  27,  24  N.  W.  575; 
State  V.  Bowman,  78  la.  519,  43  N.  W.  302;  People  v.  Tower  (Sup.),  17  N.  Y. 
Supp.  395;  State  v.  Cassady,  12  Kan.  550;  Hayden  v.  State,  55  Ark.  342,  18 
S.  W.  239;  Allyn  v.  State,  21  Neb.  593,  33  N.  W.  212;  Territory  v.  Shipley, 
(Mont.),  2  Pac.  313;  Max.  Cr.  Proc,  541;  State  v.  VanHook,  88  Mo.  105. 

Decision  of  Trial  Judge,  When  Reviewable — Exception.  The  de- 
cision of  the  trial  judge  on  the  question  of  indifference  of  a  juror  for  actual 
bias,  is  not  reviewable  in  this  court,  except  in  the  absence  of  any  evidence 
to  support  it,  in  which  case  it  is  an  error  of  law  to  which  an  exception  lies. 


416  CJODE  OF  CRIMINAL  PROCEDURE. 

State  V.  Chapman  et  al,  ;  S.  D.  414,  47  N.  W.  411.  Sec.  7439,  Comp.  Laws, 
gives  no  right  to  except  to  the  decision  of  a  judge  on  the  facts,  and  we  find 
no  provision  in  the  Code  for  a  review  of  decisions  on  the  trial,  other  than 
those  to  which  an  exception  lies.     Id. 

SECTION  CONSTRUED— EXCEPTION  CONCERNING  ANY  SUB- 
STANTIAL RIGHT.  §  8263  Rev.  Codes  N.  N.  Nothing  in  this 
code  contained  is  to  be  construed  so  as  to  deprive  either  party 
of  the  right  of  excepting  to  any  action  or  decision  of  the  court 
in  a  criminal  action  or  proceeding,  which  affects  any  other 
material  or  substantial  right  of  either  party,  whether  before 
or  after  the  trial,  or  on  such  trial.  (Adopted  through  Rev. 
Com'rs  ) 

Consult  preceding  section. 

BILL  OF  EXCEPTION,  SIGNED  AND  SETTLED  BY  JUDGE— FILING. 
§  7440  Comp.  Laws.  A  bill  containing  the  exceptions  must  be 
settled  and  signed  by  the  presiding  judge,  and  filed  with  the 
clerk.     (Sec.  413,  C.  Cr.  Proc.) 

Levisee,  p.  1335. 

Consult  next  section,  and  succeeding  sections. 

See,  as  to  settlement  of  bill  of  exceptions  or  statement,  at  time  of  rul- 
ing, in  civil  cases,  sec.  5082,  Comp.  Laws,  sec.  5465,  Rev.  Codes,  N.  D.,  p. 
69,  ante. 

SAME— STATEMENT  OF  CASE.  §  8258  Rev.  Codes  N.  D. 
Except  as  otherwise  provided  in  this  chapter,  a  statement  con- 
taining the  exceptions  must  be  settled  and  certified  by  the 
judge  who  presided  at  the  trial,  and  filed  with  the  clerk  of  the 
district  court  of  the  county  in  which  the  action  was  tried. 
(Sec.  413,  C.  Cr.  Proc,  am'd  Rev.  Com'rs.) 

Levisee,  p.  1335. 

Consult  preceding  section,  and  following  sections. 

STATEMENT  OF  CASE  DENNED.  §  8256  Rev.  Codes  N.  D.  A 
statement  of  the  case  is  a  statement,  in  writing  setting  forth  or 
showing  particularly,  one  or  more  of  the  rulings,  decisions  or 
acts  excepted  to  in  an  action  or  proceeding,  together  with  the 
facts  and  circumstances  of  the  ruling,  decision  or  act  and  the 
exception  thereto,  and  settled,  certified  and  filed  as  provided  in 
this  article.     (Adopted  through  Rev.  Com'rs.) 


BILLS  OF  EXCEPTION — STATEMENT  OF  CASE.  417 

Consult  next  section;  and  for  definition  of  statement  in  civil  cases,  see 
sec.  5464,  Rev.  Codes,  N.  D.,  p.  66,  ante. 

SAME— OFFICE  OF  §  8257  Rev.  Codes  N.  D.  The  office  of 
a  statement  of  the  case  is  to  make  such  parts  of  the  proceed- 
ings or  of  the  evidence  in  an  action,  appear  of  record  as  other- 
wise would  not  so  appear.     (Adopted  through  Rev.  Com'rs. ) 

Consult  preceding  section. 

MATTERS  DEEMED  EXCEPTED  TO  BY  DEFENDANT.  §  8260 
Rev.  Codes  N.  D.  The  decision  of  the  court  in  a  criminal 
action  or  proceeding  upon  a  matter  of  law  is  deemed  excepted 
to  by  the  defendant  in  the  following  cases: 

1.  In  refusing  to  grant  a  motion  for  a  change  of  the  place 
of  trial. 

2.  In  refusing  to  postpone  the  trial  on  motion  of  the  de- 
fendant. 

3.  In  charging  or  instructing  the  jury  upon  the  law,  upon 
the  trial  of  the  issue,  except  as  otherwise  provided  in  section 
8179  of  this  code.     (Adopted  through  Rev.  Com'rs, ) 

Consult  next  section. 

CLERK  TO  ENTER  ORDERS  DEEMED  EXCEPTED  TO.  §  8261 
Rev.  Codes  N.  D.  It  shall  be  the  duty  of  the  clerk  of  the  dis- 
trict court  in  which  any  criminal  action  or  proceeding  is  pend- 
ing or  tried,  to  enter  carefully  and  correctly  in  the  minutes  of 
such  court,  each  ruling  or  decision  of  the  court,  made  in  open 
court,  upon  any  matter  by  section  8259  aud  subdiv^isions  1  and 
2  of  section  8260  and  of  this  article  declared  to  be  deemed  ex- 
cepted to,  and  a  certified  copy  of  any  or  all  such  entries  shall 
be  and  become  a  part  of  the  record  of  said  action.  (Adopted 
through  Rev.  Com'rs.) 

Consult  preceding  section. 

BILL  SETTLED  AT  TRIAL,  UNLESS— WHEN  POINT  SETTLED.  § 
7441  Comp.  Laws.  The  bill  of  exceptions  must  be  settled  at 
the  trial,  unless  the  court  otherwise  direct.  If  no  such  direc- 
tion be  given,  the  point  of  the  exception  must  be  particularly 
stated  in  writing,  and  delivered  to  the  court,  and  must  imme- 
27— TP 


418  CODE  OF  CRIMINAL  PROCEDURE. 

diately  be  corrected  or  added  [to],  until  it  is  made  conformable 
to  the  truth.     (Sec.  414,  C,  Cr.  Proc.) 

Levisee,  p.  1836. 

Consult  next  three  sections. 

See,  as  to  settlement  of  bills  of  exceptions  in  civil  cases,  chap.  7,  pp. 
63  to  77,  ante. 

Vagrue  Assignment  of  Error  —  Must  Be  Specific.  A  general .  and 
vagrue  assignment  of  an  error  will  not  be  considered  by  this  court.  A  party 
complaining  of  error  must  specify  it  with  precision.  It  should  be  specific 
and  explicit,  so  that  by  looking  at  the  grounds  stated  the  court  can  at  once 
see  hojr,  when,  and  where  the  error  arises,  and  whether  it  is  well  or  ill 
taken.  State  v.  Chapman  et  al,  1  S.  D.  414,  47  N.  W.  411.  Assignment  of 
Error,  Without  Specification.  It  seems,  that  assignments  in  a  motion  for 
a  new  trial  jn  a  criminal  case,  that  "the  verdict  is  contrary  to  the  evi- 
dence," and  "the  verdict  is  not  sustained  by  the  evidence,"  without  specify- 
ing in  what  particulars  the  evidence  is  insufficient,  are  sufficiently  definite 
to  be  considered.     Territory  v.  Stone,  2  Dak.  155,  4  N.  W.  697. 

PROCEEDINGS  WITHOUT  STENOGRAPHER,  WHEN  EXCEPTIONS 
SETTLED— SETTLEMENT  OF  POINT  §  8464  Rev.- Codes  N.  D.  In 
all  cases  when  the  court  is  proceeding  without  a  stenographer, 
the  exceptions  must  be  settled  and  certified,  at  the  trial,  unless 
the  court  otherwise  directs.  If  the  exceptions  are  settled  at 
the  trial,  the  point  of  the  exception  must  be  particularly  stated 
in  writing  and  delivered  to  the  court,  and  must  immediately  be 
corrected  or  added  to,  until  it  is  made  conformable  to  the  truth. 
The  exceptions  so  settled  and  certified  shall  constitute  a  state- 
ment of  the  case.     (Sec.  414,  C.  Cr.  Proc,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  1335. 

Consult  preceding  section. 

NOT  SETTLED  AT  TRIAL,  WHEN  SETTLED-NOTICE-PROCEDURE. 
§  7442  Comp,  Laws.  If  the  bill  of  exceptions  be  not  settled  at 
the  trial,  it  must  be  prepared  and  served  within  three  days 
thereafter,  on  the  state's  attorney,  who  may,  within  three  days 
thereafter,  serve  on  the  defendant  or  his  counsel,  amendments 
thereto.  The  defendant  may  then,  within  three  days,  serve 
the  state's  attorney  with  a  notice  to  appear  before  the  presid- 
ing judge  of  the  court,  at  a  specified  time,  not  less  than  five 
nor  more  than  ten  days  thereafter,  to  have  the  bill  of  excep- 
tions settled.     (Sec.  415,  C.  Cr.  Proc.) 


BILLS  OF  EXCEPTION — STATEMENT  OF  CASE.  419 

Levisee,  p.  1335. 

Consult  next  two  sections,  and  three  preceding  sections. 

See,  as  to  settlement  of  bills  of  exception,  and  statements  in  civil  cases, 
sec.  5083,  Comp.  Laws,  sec.  5467,  Rev.  Codes,  N.  D,,  pp.  70-72  ante,  and  de- 
cisions thereunder;  also  sec.  5090,  Comp.  Laws,  sec.  5474,  Rev.  Codes,  N.  D. 
pp.  175-178,  ante,   and  decisions  thereunder. 

See  Territory  v.  Stone,  2  Dak.  155,  4  N.  W.  697,  cited  under  sec.  7446, 
Comp.  Laws,  infra.  ^ 

SAME— STATEMENT  OF  CASE— EX-JUDGE  MAY  SETTLE.  § 
8265  Rev.  Codes  N.  D.  If  the  exceptions  are  not  settled  at  the 
trial  and  in  all  cases  when  the  testimony  is  taken  down  by  an 
official  stenographer,  a  statement  of  the  case  containing  the  ex- 
ceptions must  be  prepared  and  served  within  thirty  days  there- 
after, on  the  state's  attorney  or  other  person  appointed  to  pros- 
iecute,  who  may  within  five  days  thereafter,  serve  on  the  de- 
fendant or  his  attorney,  amendments  thereto.  The  defendant 
may  then,  within  five  days,  serve  the  state's  attorney,  or  other 
person  appointed  to  prosecute  with  a  notice  to  appear  before 
the  judge  who  presided  at  the  trial  at  a  specified  place  and 
time,  not  less  than  five  nor  more  than  ten  days  thereafter,  to 
have  the  statement  of  the  case  settled.  At  the  place  and  time 
appointed,  or  as  soon  thereafter  as  the  same  can  be  done,  the 
judge  must  settle  the  statement  of  the  case,  and  certify  the 
same  to  be  correct,  and  thereupon  the  same  must  be  filed  with 
the  clerk  of  the  district  court  of  the  county  in  which  the  action 
was  tried.  The  judge  who  presided  at  the  trial  may  settle,  and 
certify  a  statement  of  the  case  after  as  well  as  before  he  ceases 
to  be  such  judge.  (Sec.  415,  C.  Cr.  Proc,  am'd  sec.  5,  chap. 
21,  laws  1887,  Dak.,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  1335. 

Consult  four  preceding  sections,  and  next  two  sections.  And  see,  as  to 
settlement  of  bills  ai.d  statements  by  ex-judge,  in  civil  cases,  sec.  5086, 
Comp.  Laws,  sec.  5470,  Rev.  Codes  N.  D.  p.  76,  ante. 

JUDGE  SETTLES  AT  APPOINTED  TIME— REFUSAL  APPLICA- 
TION TO  SUPREME  COURT— PROCEDURE— EFFECT  OF  SUCH  SET- 
TLEMENT. §  7443  Comp.  Laws.  At  the  time  appointed  the 
judge  must  settle  and  sign  the  bill  of  exceptions;  provided,  lioiv- 
ever,  if  the  judge   in  any  case   refuse  to  allow  an  exception  in 


420  CODE  OF  CRIMINAL  PROCEDURE. 

accordance  with  the  facts,  the  party  desiring  the  bill  settled, 
may  apply  by  petition  to  the  supreme  court,  to  prove  the  same. 
The  application  may  be  made  in  the  mode  and  manner  and 
under  such  regulations  as  the  court  may  prescribe,  and  the 
bill,  when  proven,  must  be  certified  by  a  justice  thereof  as  cor- 
rect and  filed  with  the  clerk  of  the  court  in  which  the  action 
was  tried;  and  when  so  filed^it  has  the  same  force  and  effect 
AS  if  settled  by  the  judge  who  tried  the  cause.  (Sec.  416,  C. 
Cr.  Proc,  am'd  sec.  1,  chap.  20,  laws  1885,  Dak.) 

Levisee,  p.  1336. 

Consult  proceeding  sections,  and  next  three  sections. 

For  like  application,  in  civil  cases,  see  sec.  5085,  Comp.  Laws,  sec. 
5469,  Rev,  Codes,  N.  D.,  p.  75,  ante. 

See  Territory  v.  Stone.  2  Dak.  155,  4  N.  W.  697,  cited  under  sec.  7446, 
Comp.  Laws,  infra. 

SAME— THIS  SECT/ON  GOVERNS  WHERE  NO  OTHER  PROVIS- 
ION APPLIES.  §  8266  Rev.  Codes  N.  D.  If  the  judge  who  pre- 
sided at  the  trial  in  any  case  refuses  to  allow  an  exception  in 
accordance  with  the  facts,  or  to  settle  or  certify  a  statement  of 
the  case  or  has  died  or  removed  from  the  state,  the  party  de- 
siring the  statement  settled  may  apply  by  petition  to  the  su- 
preme court  at  any  term  thereof,  or  to  any  judge  of  said  court 
in  vacation,  to  settle  and  approve  the  same.  The  application 
may  be  made  in  the  manner  and  under  such  regulations  as  the 
court  may  prescribe  by  order  or  in  its  rules,  or  as  may  be  re- 
quired by  the  judge  of  said  court  to  whom  application  is  made. 
The  statement  of  the  case  or  any  exception  when  allowed, 
must  be  certified  by  the  chief  justice  of  the  court  (if  applica- 
tion is  made  to  the  court)  or  by  the  judge  allowing  the  same, 
(when  made  to  a  judge),  as  correct,  and  filed  with  the  clerk  of 
the  district  court  of  the  county  in  which  the  action  is  tried, 
and  when  so  filed,  it  has  the  same  force  and  effect  as  if  settled 
by  the  judge  who  presided  at  the  trial  of  the  action.  In  all 
cases  when  there  is  no  provision  of  law  governing  the  allow- 
ance and  settlement  of  statements  or  exceptions,  the  same 
shall  be  allowed,  settled  and  certified  as  directed  in  this  sec- 
tion. (Sec.  416,  C.  Cr.  Proc,  am'd  sec  1,  chap.  20,  laws  1885, 
Dak.,  am'd  Rev.  Com'rs.) 


BILLS  OF  EXCEPTION— STATEMENT  OF  CASE.  421 

Levisee,  p.  1336. 

Consult   preceding-  sections,  and  next  two  sections. 

TIME  MAY  BE  ENLARGED  BY  CONSENT,  OR  ORDER.  §  7444 
Comp.  Laws.  The  time  for  preparing  the  bill  of  exceptions, 
or  the  amendments  thereto, "  or  for  settling  the  same,  may  be 
enlarged  by  the  consent  of  the  parties,  or  by  the  presiding 
judge.     (Sec.  417,  C.  Cr.  Proc. ; 

SAME —  WHEN  SUPREME  COURT  MAY  EXTEND  TIME.  § 
8267  Rev.  Codes  N.  D.  The  times  for  preparing  the  statement 
of  the  case,  or  the  amendments  thereto,  or  for  settling  and  cer- 
tifying the  same,  may  be  extended  before  or  other  times  fixed, 
after  they  have  elapsed,  by  the  agreement  of  the  parties  or  by 
the  judge  who  presided  at  the  trial,  or  in  the  cases  provided 
for  in  section  8266  of  this  code,  by  the  supreme  court,  or  by  a 
judge  thereof,     (Sec.  417,  C.  Cr.  Proc,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  1336. 

Consult  two  preceding  sections,  and  next  section. 

As  to  extending-  tinae  for  settlement  of  bills  and  statements,  in  civil 
cases,  see  sec.  5093,  Comp.  Laws,  sec.  5477,  Rev.  Codes,  N.  D.,  p.  185,  ante, 
and  decisions  thereunder. 

WHEN  EXCEPTIONS  DEEMED  ABANDONED— WHEN  DEEMED 
AGREED  TO.  §  7445  Comp.  Laws.  If  the  bill  of  exceptions  be 
not  served  within  the  time  prescribed  in  section  7442,  or  with-, 
in  the  enlarged  time  therefor,  as  prescribed  in  the  last  section, 
the  exceptions  are  deemed  abandoned.  If  it  be  served  and  the 
parties  omit,  within  the  time  limited  by  'section  7442,  the  one 
to  prepare  amendments,  and  the  other  to  give  notice  of  appear- 
ance before  the  judge,  they  are  respectively  deemed,  the  one  to 
have  agreed  to  the  bill  of  exceptions,  the  other  to  the  amend- 
ments.    (Sec.  418,  C.  Cr.  Proc.) 

Levisee,  p.  1336. 

WHAT  BILL  MUST  CONTAIN— STRIKING  OUT  MATTER.  §  7446 
Comp.  Laws.  The  bill  of  exceptions  must  contain  so  much  of 
the  evidence  only  as  is  necessary  to  present  the  questions  of 
law  upon  which  the  exceptions  were  taken,  and  the  judge 
must,  upon  the  settlement  of  the  bill,  whether  agreed  to  by 
the  parties  or  not,  strike  out  all  other  matters  contained  there- 
in.    (Sec.  419,  C.  Cr.  Proc.) 


422  CODE  OF  CRIMINAL  PROCEDURE. 

Levisee,  p.  1336. 
Consult  next  section. 

For  the  corresponding  section,  in  civil  cases,  see,  sees.  5181,  5083, 
Comp.  Laws,  sec.  5467,  Rev,  Codes,  N.  D.,  pp.  66,  70-71,  ante. 

SAME— STATEMENT  OF  CASE.-  §  8268  Rev.  Codes  N.  D. 
The  statement  of  the  case  must  contain  so  much  of  the  evi- 
dence only  as  is  necessary  to  present  the  questions  of  law  upon 
which  the  exceptions  were  taken,  and  the  Judge  must  upon  the 
settlement  of  the  statement,  whether  agreed  to  by  the  parties 
or  not,  strike  out  all  other  matters  therein.  No  particular 
form  of  exception  is  required,  but  the  objection  must  be  stated, 
with  so  much  of  the  evidence  or  other  matter  as  is  necessary 
to  explain  it,  and  no  more;  only  th6  substance  of  the  stenog- 
rapher's notes  of  the  evidence  shall  be  stated;  documents  on 
file  in  the  action  or  proceeding  may  be  copied,  or  the  substance 
thereof  stated,  or  a  reference  thereto  sufficient  to  identify  them 
may  be  made.     (Sec.  419,  C.  Cr.  Proc,  am'd  Rev.  Com'rs.) 

Levisee,  p.  1386. 

Consult  preceding  section. 

See,  corresponding  section,  in  civil  cases,  sec.  5081,  Comp.  Laws,  sec. 
5467,  Rev.  Codes,  N.  D.,  pp.  66-71,  supra. 

Record — Certificate  Showing  Substance  of  Evidence.  A  certificate 
of  the  judge  that  the  record  contains,  in  substance,  all  the  evidence  given 
upon  the  trial,  is  sufficient  to  authorize  the  court  to  review  the  evidence. 
Territory  v.  Stone,  2  Dak.  155,  4  N.  W.  697;  People  v.  York,  9  Cal.  421; 
People  V.  Getty,  49  Cal.  581;  People  v.  Fisher,  51  Cal.  321. 

Insufla^ciency  of  Evidence— Record  Must  Contain  All  Evidence.  A 
verdict  of  conviction  will  not  be  set  aside  on  the  ground  that  the  evidence 
does  not  support  it  when  the  bill  of  exceptions  only  purports  to  set  out  part 
of  the  evidence.  In  the  absence  of  an  averment  that  the  bill  of  exceptions 
contains  all  the  evidence  offered  in  the  case,  the  appellate  court  will  in- 
dulge any  reasonable  presumption  that  other  evidence  was  introduced  to 
support  the  verdict.    State  v.  Brennan,  2  S.  D.  384,  50  N.  W.  625. 

FILING  OF  BILL,  AND  WHEN.  §  7447  Comp.  Laws.  The  bill 
of  exceptions  must  be  filed  with  the  clerk  of  the  court  at  the 
time  of,  or  before  taking  the  writ  of  error.  (Sec.  420,  C.  Cr. 
Prbc.) 

Levisee,  p.  1336. 

Consult   sec.  7440,    Comp.    Laws;  sec.  8269,  Rev.  Codes,  supra. 


BILLS  OF  EXCEPTION — STATEMENT  OF  CASE.  42^ 

WHAT  DECISIONS  MAY  BE  EXCEPTED  TO.  §  7448  Comp. 
Laws.  Exceptions  may  be  taken  by  either  party  to  a  decision 
of  the  court  or  judge  upon  a  matter  of  law: 

1.  In  granting  or  refusing  a  motion  in  arrest  of  judg- 
ment. 

2.  In  granting  or  refusing  a  motion  for  a  new  trial  (Sec. 
421,  C.  Cr.  Proc.) 

Levisee,  p.  1336. 

Consult    section    7439,     Comp.    Laws,     sec.   8262,    Rev.    Codes,   N.  D. 
supra,  and  decisions  thereunder;  and  next  section. 

MATTERS  DEEMED  EXCEPTED  TO  BY  EITHER  PARTY.  §  8259 
Rev.  Codes  N.  D.  The  decision  of  the  court,  in  a  criminal  ac- 
tion or  proceeding  upon  a  matter  of  law  is  deemed  excepted  to 
by  either  party  in  the  following  cases: 

1.  In  granting  or  refusing  a  motion  to  set  aside  an  infor- 
mation or  indictment. 

2.  In  allowing  or  disallowing  a  demurrer  to  an  informa- 
tion or  indictment. 

3.  In  granting  or  refusing  a  motion  in  arrest  of  judg- 
ment. 

4.  In  granting  or  refusing  a  motion  for  a  new  trial. 

5.  In  making  or  refusing  to  make  an  order  after  judg- 
ment affecting  any  substantial  right  of  the  parties.  (Adopted 
through  Rev.  Com'rs. ) 

Consult  preceding  section. 

See,  for  corresponding  section,  in  civil  cases,  sec.  5080,  Comp  Laws, 
sec.  5463,  Rev.  Codes,  N.  D.  p.  64,  ante. 

Exception  to  Decision  on  Katter  of  Law — Additional  to  Common 
Law  Right.  By  sec.  421,  C.  Cr.  Proc,  exceptions  are  allowed  to  a  decis- 
ion of  the  court  or  judge*  upon  a  matter  of  law,  in  refusing  a  motion  for  a  new 
trial;  which  is  a  step  in  addition  to  the  common  law  right.  Territory  v. 
Stone,  2  Dak.  155,  4  N.  W.  697. 

INSTRUCTIONS,  WHAT  DEEMED  EXCEPTED  TO— INSTRUCTIONS 
AND  STATEMENT  PART  OF  RECORD— ERROR  ON  RECORD.  §  8269 
Rev.  Codes  N.  D.  The  instructions  requested  by  the  defend- 
ant and  refused,  or  by  the  prosecutor  and  given,  and  all  the 
instructions  given  to  the  jury,  by  the  court  in  writing,  or  or- 
ally and  written  out  by  the  stenographer  of  the  court  and  filed 


424  CODE  OF  CRIMINAL  PROCEDURE. 

with  the  clerk,  except  as  otherwise  provided  in  section  8179  of 
thie  code,  are  deemed  excepted  to,  and  need  not  be  embodied 
in  the  statement  of  the  case,  but  the  same  and  each  of  them 
with  the  indorsements,  if  any,  showing  the  action  of  the  court 
thereon,  form  a  part  of  the  record  of  the  action.  The  decision 
of  the  court  upon  any  matters  of  law  in  this  article  declared  to 
be  deemed  excepted  to,  need  not  be  embodied  in  any  statement 
of  the  case,  and  forms  a  part  of  the  record  of  the  action.  Any 
statement  of  the  case  or  exception,  settled,  certified  and  filed 
as  provided  in  this  article  also  forms  a  part  of  the  record  of  the 
action.  Any  error  committed  by  the  court  in  or  by  any  decis- 
ion, ruling,  instruction  or  other  act  and  appearing  in  the 
record  of  the  action  may  be  taken  advantage  of  upon  a  motion 
for  a  new  trial  or  in  the  supreme  court  on  an  appeal.  (Adopted 
through  Rev.  Com'rs.) 


CHAPTER    XXXIII. 

Chap.  6,  Title  8,  Code  Criminal  Procedure,  S.  D. 
Art.  2,  Chap.  11,  Code  Criminal  Procedure,  N.  D. 

new  trials. 

NEW  TRIAL  DEFINED— EFFECT  OF  GRANTING— EVIDENCE  ANEW 
—FORMER  VERDICT  NO  BAR.  §  7449  Comp.  Laws;  §  8270 
Rev.  Codes  N.  D.  A  new  trial  is  a  re-examination  of  the  issue 
in  the  same  court,  before  another  jury,  after  a  verdict  has  been 
given.  The  granting  of  a  new  trial  places  the  parties  in  the 
same  position  as  if  no  trial  had  been  had.  All  the  testimony 
must  be  produced  anew,  and  the  former  verdict  cannot  be  used 
or  referred  to,  either  in  evidence  or  in  argument,  or  be  pleaded 
in  bar  of  any  conviction  which  might  have  been  had  under  the 
indictment.     (Sec.  422,  C.  Cr.  Proc.) 

[Sec.  8270,  Rev..  Codes,  N.  D.,  is  the  same,  except  that  the  words  "in- 
formation or"  precede  the  word  "indictment."] 

Levisee,  p.  1336-7. 


NEW  TRIALS.  425 


Consult  next  two  sections. 

In  connection  with  this  chapter,  consult  generally,  as  to  instructions 
in  criminal  cases,  sec.  7370,  Comp.  Laws,  sees.  8175  to  8179,  Rev.  Codes,  N. 
D.,  chap.  29,  pp.  371-381,  ante,  and  the  various  sub-heads  under  the  general 
subjects  of  instructions,  witnesses,  evidence,  rulings  of  trial  court,  errors, 
etc.,  there  found;  as  to  errors,  etc.,  relative  to  challenges  of  jurors,  etc. 
chap.  28,  pp.  359-371,  ante;  as  to  formation  of  trial  jury,  chap.  27,  pp.  353- 
358,  ante;  and  as  to  mode  of  trial,  chap.  26,  pp.  351-353,  ante. 

Once  in  Jeopardy,  When  Plea  Not  Good — Reversal  on  Erroneous 
Charge.  Where  defendant  in  a  criminal  action  is  convicted  of  the  crime 
charged,  and  subsequently,  on  writ  of  error  sued  out  by  himself,  procures 
in  this  court  a  reversal  of  the  judgment  of  conviction,  for  errors  in  the 
charge  of  the  trial  court  to  the  jury,  he  is  not  entitled  to  be  discharged  on 
the   ground   that  he   has  once  been  put  in  jeopardy.     State  v.  Reddington, 

....  S.  D 66  N.  W.  464;  Whar.  Cr.  PI.  &  Pr.  (9th   Ed.)  510;  Morris- 

ette  V.  State,  77  Ala.  71;  Kendall  v.  State,  65  Ala.  442;  Cooley,  Const.  Lim. 
400;  McGinn  v.  State  (Neb.)  65  N.  W,  46;  Bohanan  v.  State,  18  Neb.  57,  24 
N.  W.  390;  Sutcliffe  v.  State,  18  Ohio,  469;  State  v.  Sommers  (Minn.),  61 
N.  W.  907.  On  a  reversal  of  the  judgment  in  such  case,  it  is  proper  for  this 
court  to  order  a  new  trial  in  the  court  below.  State  v.  Serenson,  ....  S.  D. 
. . . . ,  64  N.  W.  130. 

See,  concerning  the  plea  of  auterfois  acquit,  the  record,  etc.,  the 
charge  of  Bennett,  Judge,  to  the  jury,  in  People  v.  Wintermute,  1  Dak. 
60  (102). 

POWER  TO  GRANT  NEW  TRIAL,  IN  WHAT  GASES— PROCEDURE 
ON  NEWLY  DISCOVERRD  EVIDENCE.  §  7450  Comp.  Laws.  The 
court  in  which  a  trial  has  been  had  upon  an  issue  of  fact,  has 
power  to  grant  a  new  trial,  when  a  verdict  has  been  rendered 
against  the  defendant  by  which  his  substantial  rights  have  been 
prejudiced,  upon  his  application  in  the  following   cases   only: 

1.  When  the  trial  has  been  had  in  his  absence,  if  the  in- 
dictment is  for  felony. 

2.  When  the  jury  has  received  any  evidence  out  of  court 
other  than  that  resulting  from  a  view  of  the  premises. 

3.  When  the  jury  have  separated  without  leave  of  the 
court,  after  retiring  to  deliberate  upon  their  verdict,  or  been 
guilty  of  any  misconduct  by  which  a  fair  and  due  considera- 
tion of  the  case  has  been  prevented. 

4.  When  the  verdict  has  been  decided  by  lot,  or  by  any 
means  other  than  a  fair  expression  of  opinion  on  the  part  of 
all  the  jurors. 


426  CODE  OP  CRIMINAL  PROCEDURE. 

5.  When  the  court  has  misdiriected  the  jury  in  a  matter  of 
law,  or  has  erred  in  the  decision  of  any  question  of  law  arising 
during  the  course  of  the  trial. 

6.  When  the  verdict  is  contrary  to  the  law   or  evidence. 

7.  When  new  evidence  is  discovered  material  to  the  de 
fendant,  and  which  he  could  not  with  reasonable  diligence 
have  discovered  and  produced  at  the  trial.  When  a  motion  for 
a  new  trial  is  made  upon  the  ground  of  newly  discovered  evi- 
dence, the  defendant  must  produce  at  the  hearing,  in  support 
thereof,  the  affidavits  of  the  witnesses  by  whom  such  evidence 
is  expected  to  be  given,  and  if  time  is  required  by  the  defend- 
ant to  produce  such  affidavits,  the  court  may  postpone  the 
hearing  of  the  motion  for  such  length  of  time  as,  under  all  the 
circumstances  of  the  case,  may  seem  reasonable.  (Sec.  423; 
C.  Cr.  Proc,  am'd  sec.  1,  chap.  115,  laws  1885,  Dak.) 

SAME  — EXAMINATION  OF  AFFIANTS  ON  MOTION,  WHEN.  § 
8271  Rev.  Codes  N.  D.  When  a  verdict  has  been  rendered 
against  the  defendant,  the  court  in  which  the  trial  was  had, 
may  upon  his  application,  grant  a  new  trial  in  the  following 
cases,  only: 

1.  When  the  trial  has  been  had  in  his  absence,  if  the  in- 
formation or  indictment  is  for  a  felony. 

3.  When  the  jury  has  received  out  of  court  any  evidence 
other  than  that  resulting  from  a  view  of  the  premises,  or  any 
communication,  document  or  paper  referring  to  the  case. 

3.  When  the  jury  have  separated  without  leave  of  the 
court,  after  retiring  to  deliberate  upon  their  verdict,  or  have 
been  guilty  of  any  misconduct  by  which  a  fair  and  due  consid- 
eration of  the  case  has  been  prevented. 

4.  When  the  verdict  has  been  decided  by  lot,  or  by  any 
other  means  than  a  fair  expression  of  opinion  on  the  part  of  all 
the  jurors. 

5.  When  the  court  has  misdirected  the  jury  in  a  matter  of 
law,  or  has  erred  in  the  decision  of  any  question  of  law  arising 
during  the  course  of  the  trial  or  has  done  or  allowed  any  act  in 
the  action  prejudicial  to  the  substantial  rights  of  the  de- 
fendant. 


NEW  TRIALS.  427 


6.  When  the  verdict  is  contrary  to  law  or  clearly  against 
the  evidence. 

7.  When  new  evidence  is  discovered  material  to  the  de- 
fense, and  which  the  defendant  could  not,  with  reasonable  dili- 
gence, have  discovered  and  produced  at  the  trial. 

When  the  application  for  a  new  trial  is  made  upon  the  ground 
of  newly  discovered  evidence,  the  defendant  must  produce 
at  the  hearing,  in  support  thereof,  the  affidav^its  of  the 
persons  by  whom  such  evidence  is  expected  to  be  given;  and 
if  time  is  required  by  the  defendant  to  procure  such  aflidavits, 
the  court  may  postpone  the  hearing  of  the  motion  for  such 
length  of  time  as,  under  all  the  circumstances  of  the  case,  may 
seem  reasonable.  But  the  court  may,  when  the  affiants  are 
residents  of  this  state,  compel  their  personal  attendance  before 
it;  and  they  may  be  examined  and  cross-examined  under  oath, 
touching  the  matters  set  forth  in  their  aflidavits.  (Sec.  423, 
C.  .Cr.  Proc,  am'd  sec.  1,  chap.  115,  laws  1885,  Dak.,  am'd 
Rev.  Com'rs. ) 

Levisee,  p.  1337. 

Consult  preceding  section. 

See,  as  to  grounds  of  new  trial,  in  civil  cases,  sec.  5088,  Com  p.  Laws, 
"sec.  5471,  Rev.  Codes,  N.  D.,  pp.  77-8,  ante^  and  decisions  thereunder;  sec. 
6089,  Com  p.  Laws,  sec.  5473,  Rev.  Codes,  N.  D.,  p.  174,  ante. 

Injury  Must  Appear — Excluded  Evidence — Grade  of  Offense.  It 
must  appear  that  the  improper  exclusion  of  evidence  may  have  injured  de- 
fendant; and  when  the  evidence  excluded  only  tends  to  reduce  the  grade  of 
the  offense  to  that  of  which  defendant  was  convicted,  this  court  will  not  i*e- 
verse.  Territory  v.  Gay,  2  Dak.  125,  2  N.  W.  477.  Impeachment  of  Ver- 
dict— Not  by  Juror.  A  verdict  cannot  be  impeached  by  the  affidavits  of 
the  jurors.  Territory  v.  King,  6  Dak.  13!,  50  IST.  W.  623;  People  v.  Carnal, 
1  Park.  256;  Wilson  v.  People,  4  Id.  619;  People  v.  Hartung,  17  How.  Pr. 
87;  Dalrymple  v.  Williams,  63  N.  Y.  63;  People  v.  Baker,  1  Cal.  406;  Peo- 
ple v.  Doyell,  Id.  85;  State  v.  Underwood,  57  Mo.  40;  Woodward  v.  Leavitt, 
107  Mass.  453;  Territory  v.  Taylor,  1  Dak.  479, 

Same— Substantial  Big-hts.  See,  relative  to  impeachment  of  the  ver- 
dict, for  misconduct  of  the  jury,  by  affidavits  of  the  jurors,  and  the  showing 
necessary  to  make  out  a  case  of  prejudice  to  the  substantial  rights  of  the  de- 
fendant, for  the  purpose  of  granting  a  new  trial,  the  nisi  prius  opinion  of 
Shannon,  J,,  in  Territory  v.  Taylor,  published  in  1  Dak.  459  (Appen- 
dix.) 


428  CODE  OF  CRIMINAL  PROCEDURE. 

Separation  of  Jury,  Misconduct,  Etc.     Consult,  upon  the  subject  of 

separation  and  other  misconduct  of  the  jury,   State   v.   Church,   S.  D, 

60  N.  W.  1-13,  and  State  v.  Church  ....  S.  D ,64  N.  W.  152,  cited 

under    sec.   7406,  Com  p.   Laws,   sec.   8218,  Rev.  Codes,  N.  D.  chapter  29, 
ante. 

Election,  as  Between  Counts  of  Indictment.  When  the  evidence 
showed  more  than  one  sale  of  whiskey  by  defendant  to  persons  named  in  the 
indictment  within  one  year  prior  to  finding  of  the  indictment,  and  when  the 
witness  could  not  fix  the  date  of  any  particular  sale,  it  was  not  error  to  i-e- 
fuse  to  require  the  prosecution  to  elect  upon  which  specific  sale  it  relied  for 
conviction.  State  v.  Kerr,  3  N.  D.  523,  58  N.  W.  27;  State  v.  Smith,  22  Vt. 
74;  State  v.  Crimmins,  31  Kas.  376,  2  Pac.  574. 

Remarks  of  Counsel — Matter  in  Court's  Discretion.  Control  of  re- 
marks of  counsel  for  the  state  upon  the  trial  is  matter  of  discretion  of  the 
trial  court,  and  the  failure  to  strike  out  such  remarks,  or  caution  the  jury 
against  them,  is  not  such  abuse  of  discretion  as  constitutes  error,  where  the 
remarks  are  not  such  as  would  be  likely  to  prejudice  accused.  State  v.  Mc- 
Gahey,  3  N.  D.  293,  55  N.  W.  753. 

Cross-Examination  Showing'  Prejudicial  Relations  to  Defendant. 
The  state  has  the  right  on  cross-examination,  to  show  the  nature  of  rela- 
tions existing  between  witness  and  accused,  so  far  as  they  would  create  a 
bias  on  part  of  witness  that  might  reasonably  be  supposed  to  affect  his  tes- 
timony, and  this  rule  cannot  be  changed  by  the  fact  that  these  relations 
may  be  such  as  to  prejudice  accused  before  the  jury.  State  v.  McGahey,  3 
N.  D.  293,  55  N,  W.  753;  1  Greenl.  Ev.  450,  note;  Cameron  v.  Montgomery, 
13  Serg.  &  R.  123;  Batdorff  v.  Bank,  61  Pa.  St.  179;  State  v.  Bacon,  13  Ore. 
143,  9  Pac.  393.  Re-Direct  Examination,  Repelling  Prejudicial  Infer- 
ences. It  is  proper,  upon  re-direct  examination  of  a  witness  in  a  criminal 
case  to  permit  him  to  state  facts  and  circumstances  tending  to  correct  or  re- 
pel any  wrong  impressions  or  inferences  that  arise  from  matters  drawn  out 
on  cross-examination,  and  this  rule  is  not  changed  because  such  facts  and 
circumstances  may  be  of  such  a  character  as  to  prejudice  the  defendant  in 
the  minds  of  the  jury.  State  v.  McGahey,  3  N.  D.  293,  55  N.  W.  753;  Schas- 
er  V.  State,  36  Wis.  429;  State  v.  Hopkins,  50  Vt.  316;  People  v.  Smallman, 
55  Cal.  185. 

Rebuttal  of  Proofs  of  Practices  Affecting  Witness'  Credibility — Im- 
proper When  Collateral.  Contradictory  rebuttal  testimony,  to  meet  state- 
ments made  on  cross-examination  tending  to  elicit  proof  that  witness  had 
been  guilty  of  practices  that  would  affect  his  credit,  is  improper,  where 
such  matters  are  collateral  to  the  issue.  State  v.  McGahey,  3  N.  D.  293,  55 
N.  W.  753;  1  Greenl.  Ev.,  sec.  449,  and  cases  cited.  Witness  Volunteering 
Statements,  When  Considered  Withdrawn  From  Jury.  Incompetent 
and  irresponsive  matter,  volunteered  by  a  witness,  and  which  is  striken  out 


NEW   TRIALS.  429 


on  motion,  is  practically  withdrawn  from  the  iury,  and  no  further  caution 
to  the  jury  to  disregard  it  is  necessary.  State  v.  McGahey,  3  N.  D.  293,  55 
N.  W.  753;  Thomp.  Tr.,  sees.  715-723. 

Ruling  On  Evidence,  When  Not  Reversible  Error.  An  error  of  the 
court  in  ruling  upon  the  admission  of  evidence  that  conclusively  appears  to 
have  been  innoxious,  and  could  have  worked  no  prejudice  to  the  party  ob- 
jecting, is  no  ground  for  reversal.  State  v.  McGahey,  3  N.  D.  293,  55  N. 
W.  753. 

All  Eye-Witnesses— Unnecessary  for  State  to  Swear  Them,  When. 
No  duty  rests  upon  the  prosecution  to  produce  and  swear  for  the  state  all 
eye-witnesses  to  the  transaction,  where  the  testimony  of  those  called  is  di- 
rect and  positive,  and  apparently  covers  the  whole  transaction.  State  v. 
McGahey,  3  N.  D.  293,  55  N.  W.  753;  People  v.  Deitz,  86  Mich.  419,  49  N. 
W.  296,-  People  v.  Gordon,  40  Mich.  716;  People  v.  Etter,  81  Mich.  570,  45 
N.  W.  1109. 

"Reasonable  Doubt." — Instruction  Upon,  Approved.  For  the  pur- 
pose of  elucidating,  and  with  a  desire  to  render  more  intelligible,  the 
phrase,  "reasonable  doubt,"  the  court  instructed  the  jui-y  as  follows:  "You 
are  further  instructed  that  the  reasonable  doubt  which  entitles  an  accused 
to  an  acquittal  is  a  doubt  of  guilt  reasonably  arising  from  all  the  evidence 
in  the  case.  The  proof  is  deemed  to  be  beyond  reasonable  doubt  when  the 
evidence  is  sufficient  to  impress  the  judgment  of  ordinarily  prudent  men 
with  a  conviction,  on  which  they  would  act  without  hesitation,  in  their  own 
most  important  concerns  or  affairs  of  life.  In  otner  words,  in  a  legal  sense,  a 
reasonable  doubt  is  a  doubt  which  has  some  reason  for  its  basis.  It  aoes  not 
mean  a  doubt  from  mere  caprice  or  groundless  conjecture.  A  reasonable 
doubt  is  such  a  doubt  as  the  jury  are  able   to  give  a  reason  for."    Held,  not 

reversible  error.     State  v.  Serensen, S.  D ,64  N.  W.  130;  State  v. 

Morey,  (Or.)  36  Pac.  573;  Starkie  on  Ev.  (9th  Am.  Ed.)  865;  Abb.  Cr.  Brief, 
487;  People  v.  Guidici,  100  N.  Y.  503,  3  N.  E.  493;  2  Thomp.  Tr.  1832,  and 
cases  cited.  Instruction  Refused,  Though  Good,  But  Covered  by  Gen- 
eral Charge.  It  is  not  error  to  refuse  an  instruction  requested  that  cor- 
rectly states  the  law,  and  is  applicable  to  the  case,  when  the  general  charge 
specifically  and  fully  covers  the  same  points.  State  v.  McGahey,  3  N.  D. 
293.  55  N.  W.  753:  Elliott,  App.  Proc,  sec.  706,  and  cases  in  note;  Thom. 
Tr.,  sec.  2352,  and  cases  in  note. 

See,  as  to  trial  in  absence  of  defendant,  sec.  7321,  Comp.  Laws,  sec. 
8125,  Rev.  Codes,  N.  D.  p.  352,  ante,  and  decisions  thereunder;  sec.  7418, 
Comp.  Laws,  sec.  8231,  Rev.  Codes,  chap.  31,  ante. 

See,  as  to  new  trials  in  civil  cases,  chap  8,  pp.  77,  et  seq.  ayite;  and  as  to 
newly  discovered  evidence  as  ground  for  new  trial,  in  civil  cases,  see  pp. 
78,  84-5,  ante. 

APPLICATION  FOR,  WHEN  MADE-SAME,  NEWLY  DISCOVERED 
EVIDENCE.     §  7451  Comp.  Laws.     The  application  for   a  new 


430  CODE  OF  CRIMINAL  PROCEDURE. 

trial  must  be  made  before  judgment,  but  the  court  or  judge 
thereof  may  upon  good  cause  shown,  allow  such  application  to 
be  made  at  any  time  within  thirty  days  after  the  entry  of  such 
judgment.  And  motions  for  a  new  trial  on  the  ground  of  new- 
ly discovered '  evidence,  may  be  made  after  judgment  at  the 
term  in  which  the  cause  is  tried,  or  during  vacation  before  the 
court  or  judge  thereof,  at  any  time  before  the  next  succeeding 
term  or  at  such  term,     (Sec.  2,  chap.  115,  laws  1885,  Dak.) 

Sec.  424,  C.  Cr.  Proc;  Levisee,  p.  1337. 

Consult  next  three  sections. 

SAME— WHEN  MADE  ON  CERTAIN  SPECIFIED  GROUNDS.  § 
8272  Rev.  Codes  N.  D.  The  application  for  a  new  trial  must  be 
made  upon  not  less  than  one  nor  more  than  five  days'  written 
notice,  and  if  based  upon  any  of  the  grounds  mentioned  in  sub- 
divisions 2,  3,  4  and  7,  of  the  last  section,  such  written  notice 
must  be  served  and  filed  within  thirty  days  after  the  discovery 
of  the  facts  upon  which  the  party  relies  in  support  of  his  ap- 
plication; and  in  all  other  cases  the  notice  must  be  served  and 
filed  within  ten  days  after  the  rendition  of  the  verdict,  or  with- 
in such  further  or  other  time  as  the  court  may  allow  or  fix. 
(Sec.  2,  chap.  115,  laws  1885,  Dak.,  am'd  Rev.  Com'rs.) 

Sec.  424,  C.  Cr.  Proc.;  Levisee,  p.  1337, 

Consult  preceding  section,  and  following  sections. 

SAME— WHEN  MADE  ON  OTHER  SPECIFIED  GROUNDS— STAY 
OF  PROCEEDINGS— SETTLEMENT  OF  STATEMENT,  ERRORS  SPECI- 
FIED. §-8273  Rev.  Codes  M.'  D,  The  application  for  a  new 
trial,  if  made  for  any  of  the  causes  mentioned  in  subdivisions 
1,  2,  3,  4  and  7,  of  section  8271  must  be  based  upon  affidavits 
which  must  be  filed  before  the  notice  is  served;  in  all  other 
cases  the  application  may  be  made  upon  the  minutes  of  the 
court  or  upon  the  record  of  the  action  and  the  notice  must  des- 
ignate generally  the  grounds  upon  which  the  motion  will  be 
made  as  near  as  may  be  in  the  language  of  section  8271, 
When  the  application  is  made  upon  the  minutes  of  the  court, 
the  notice  must  specify  particularly  the  errors  relied  upon  and 
upon  the  hearing  reference  may  be  had  to  any  and  all  papers 
on  file  in  the  action,  the  clerk's  minutes  and  the  stenographer's 


WRIT   OF   ERROR — APPEALS.  431 

notes  of  the  testimony.  The  application  must  be  heard  on  the 
day  specified  in  the  notice,  or  as  soon  as  practicable  thereaft'er. 
In  all  cases  when  the  notice  is  served  before  judgment,  the 
court  may  in  its  discretion,  stay  all  further  proceedings  in  the 
action  until  such  application  is  disposed  of.  When  the  appli- 
cation is  made  upon  the  minutes  of  the  court  and  a  statement 
of  the  case  becomes  necessary,  the  draft  thereof,  and  amend- 
ments thereto  may  be  proposed  and  served  and  the  statement 
settled,  certified  and  filed  in  the  manner  and  times  and  after 
the  notices  in  this  article  specified.  If  a  review  of  the  decision 
upon  such  application  is  sought  on  appeal,  the  errors  specified 
in  the  notice  must  be  embodied  in  the  statement  as  settled  and 
certified.  (Sec.  2,  chap.  115,  laws  1885,  Dak.,  am'd  Rev. 
Com'rs.) 

Sec.  424,  C.  Cr.  Proc,  Levisee,  p.  1337. 

Consult  three  preceding  sections,  and  next  section. 

MUST  BE  MADE  WITHIN  TIME  FOR  APPEAL— DEATH  SENTENCE, 
APPLICATION  WHEN.  §  8274  Rev.  Codes  N.  D.  The  applica- 
tion for  a  new  trial,  except  in  case  of  a  sentence  of  death,  must 
be  made  before  the  time  for  anappeal  has  elapsed.  In  case  of  a 
sentence  of  death,  the  application  may  be  made  at  any  time  be- 
fore the  execution.  (Sec.  2,  chap.  115,  laws  1885,  Dak.  am'd 
Rev.  Com'rs.) 

Sec.  424,  C.  Cr.  Proc,  Levisee,  p.  1337.  , 

Consult  preceding  sections.  ' 


CHAPTER  XXXIV. 

Chap.  1,  Title  10,  Code  Criminal  Procedure,  S.  D. 

Art.  1,  Chap.  13,  Code  Criminal  Procedure,  N.  D. 

writ  of  error— appeals. 

WRIT  OF  ERROR— WHO  MAY  SUE  OUT,  TO  REVIEW  WHAT.  § 
7499  Comp.  Laws.  Either  party  may  sue  out  a  writ  of  error 
to  remove  to  the  supreme  court,  and  therein  to  re-examine  and 


432  CODE  OF  CRIMINAL  PROCEDURE. 

review  the  record  and  bills  of  exception  in  a  criminal  action, 
upon  matters  of  law  decided  in  the  circuit  courts,  in  manner  as 
prescribed  in  this  chapter.     (Sec.  472,  C.  Cr.  Proc. ) 
Levisee,  p.  1345.  ^ 

Consult  next  three  sections;  sec.  7502,  Comp.  Laws,  sec.  8328,  Rev. 
Codes,  infra. 

SAME— APPEAL  §  8325  Rev.  Codes  N.  D.  Either  the  de- 
fendant or'the  state  may  take  an  appeal  as  provided  in  this  ar- 
ticle.    (Adopted  througli  Rev.  Com'rs. ) 

Consult  next  section. 

APPEAL  BY  DEFENDANT,  FROM  ANY  JUDGMENT.  §  8326  Rev. 
Codes  N.  D.  An  appeal  to  the  supreme  court  may  be  taken 
by  the  defendant  as  a  matter  of  right  from  any  judgment 
against  him.     (Adopted  through  Rev.  Com'rs.) 

Consult  preceding  section. 
Writs  of  Error,  Under  the  Statutes,  When  Allowed.  Under  our 
statutes  (sees.  7499,  7500,  7502,  Comp.  Laws,)  writs  of  error  are  used  to  re- 
move to  this  court  for  examination  and  review  the  record  in  all  criminal  ac- 
tions, and  they  are  allowed  in  all  criminal  cases  from  the  final  decisions  of 
inferior  courts.  Criminal  contempt  proceedings  are  properly  brought  to 
to  this  court  by  writ  of  error.  State  v.  Knight  et  al,  3  S.  D.  509,  54* N.  W. 
412;  Ex  parte  Howe,  7  Cal.  175;  Ex  parte  Langdon,  25  Vt.  680;  Winkelman 
v.  People,  50  111.  449;  Butler  v.  People,  2  Colo.  295;  Storey  v.  People,  79  111. 
45;  Myers  V.  State,  (Ohio  Sup.)  22  N.  E.  43;  Wyatt  v.  People  (Colo.  Supt.) 
28  Pac.  961. 

Judgment  in  Contempt  Reviewable  by  Writ  of  Error — What  For 
Review.  A  Judgment  imposing  a  fine  and  imprisonment  for  contempt  of 
court  under  sec.  13,  chap.  110,  laws  1890,  is  reviewable  by  writ  of  error,  and 
upon  such  review  this  court  will  consider  (1)  whether  or  not  the  alleged  act 
of  contempt  was  in  law  a  contempt  of  court;  (2)  whether  or  not  there  is  any 
evidence  tending  to  establish  the  commission  of  the  act;  and  (3)  whether  or 
not  the  court  had  jurisdiction  to  pronounce  the  judgment.     State  v.  Marku- 

son, . . .  .N.  D ,  64  N.  W.   934;  State   v.   Davis,  2  N.  D.  461,  51  N.  W.  942; 

Gandy  v.  State,  13  Neb.  445,  14  N.  W.  143;  In  re  Smith,  117  111.  63,  7  N.  E. 
683;  Cooper  v.  People,  13  Colo.  337,  22  Pac.  790;  State  v.  Knight  et  al,  3  S. 
D,  509,  54  N.  W.  412. 

Same— Rule  of  Reversal.  While  an  appellate  court  has  jurisdiction 
to  review  an  order  punishing  for  criminal  contempt,  so  far  as  to  determine 
whether  the  lower  court  had  jurisdiction,  or  whether  the  words  charged 
constitute  criminal  contempt,  yet  the  decision  of  the  court  making  it  is  not 
to  be  lightly  reviewed.     Its  judgment  should  not  be  reversed  unless  it  isap- 


WRIT   OF   ERUOR — APPEALS.  433 

parent  that  no  contempt  has  been  committed,  or  that  the  court  exercised  its 
authority  in  a  capricious,  oppressive,  or  arbitrary  manner.  State  v. 
Knight  et  al,  3  S.  D.  509,  54  N.  W.  412;  Ex  parte  Reed,  100  U.  S.  13-23; 
Haynes,  New  Tr.  and  A  pp.,  sec.  198;  2  Bish.  Cr.  Law,  sec.  268;  Vilas  v. 
Burton,  27  Vt.  56;  People  v.  Kelly,  24  N.  Y.  74;  Phillips  v.  Welch,  11  Nev. 
188;  State  v.  Galloway,  5  Cold.  337;  Ex  parte  Perkins,  18  Cal.  60;  People  v. 
O'Neil,  47  Cal.  109;  Roe  v.  Superior  Court,  60  Cal.  93;  Romeyn  v.  Caplis,  17 
Mich.  455.  Same — Motion  to  Dismiss  Writ  Denied.  In  State  v.  Sweet- 
land,  3  S.  D.  503,  54  N.  W.  415,  a  motion  was  made  to  dismiss  the  writ  of 
error  upon  the  ground  that  a  judgment  for  a  contempt  cannot  be  brought  to 
this  court  for  review  by  such  writ;  which  motion  was  overruled,  upon  the 
authority  of  State  v.  Knight  et  al,  3  S.  D.  509,  54  N.  W.  412. 

FROM  WHAT  DECISIONS  ALLOWED— PETITION  FOR.  §  7500 
Comp.  Laws.  Writs  of  error  shall  be  allowed  in  all  cases  from 
the  final  decisions  of  said  circuit  courts,  to  the  supreme  court, 
under  such  regulations  as  are  herein  or  may  be  prescribed  by 
law.  The  party  seeking  the  writ  must  apply  to  the  judge,  or 
to  a  justice  of  the  supreme  court,  by  petition,  verified  by  affi- 
davit, setting  forth  clearly  and  succinctly  the  chief  matters  of 
error  complained  of.     ( Sec,  473,  C.  Cr.  Proc. ) 

Levisee,  p.  1345. 

Consult  preceding  sections. 
Procedure  in  Error — Illegal  Sentence — Directing  Judgment  Below. 
In  Territory  v.  Conrad,  1  Dak.  348,  46  N.  W.  605,  the  court  makes  the  fol- 
lowing recital  concerning  the  bringing  of  the  case  into  the  supreme  court 
on  writ  of  error,  after  reciting  the  sentence  and  the  exception  of  the  defend- 
ant thereto:  "And  thereupon  a  wi'it  of  error  was  allowed  and  a  certificate 
of  probable  cause  therefor  given  by  the  court  below,  in  pursuance  of  sees. 
473  and  479  of  the  Code  of  Crim.  Proc.  The  certificate  was  filed,  and  exe- 
cution of  the  judgment  was  stayed,  and  the  defendant  is  detained  to  abide 
the  judgihent  of  the  supreme  court  according  to  sec.  480,  Id."  It  was  held 
in  that  case,  that  where  the  only  error  complained  of  is  the  illegality  of  the 
sentence,  the  supreme  court  has  the  power  to  affirm  the  conviction,  modify 
the  judgment,  and  remit  the  case  to  the  court  below  that  the  proper  judg- 
ment may  be  there  imposed. 

PLAINTIFF  IN  ERROR,  WHO  IS— TITLE  OF  ACTION.  §  7501 
Comp.  Laws.  The  party  suing  out  the  writ  is  known  as  the 
plaintiff  in  error,  and  the  adverse  party  as  the  defendant  in  er- 
ror, but  the  title  of  the  action  is  not  changed  in  consequence  of 
the  writ.  (Sec.  474,  C.  Cr.  Proc.) 
28— TP 


434  CODE  OF  CRIMINAL  PROCEDURE. 

Levisee,  p.  1345. 

Consult  two  preceding  sections. 

SAME,' ON  APPEAL  §  8327  Rev.  Codes  N.  D.  The  party 
appealing  is  known  as  the  appellant  and  the  adverse  party  as 
the  respondent;  but  the  title  of  the  action  is  not  changed  in 
consequence  of  the  appeal.  ^Sec.  474,  C.  Cr.  Proc,  atn'd  Rev. 
Com'rs. ) 

Levisee,  p.  1346. 

Consult  State  v.  Knight  et  al,   3  S.   D.   509,  54  N.  W.  412;  State  v. 

Markuson,  . . . .  N.  D ,  64  N.  W.  934;  State  v.  Sweetland,  3  S.  D,  503,  54 

N.   W.  415,  cited  under  sec.  7499,  Comp.   Laws,  sec.  8325,  Rev.  Codes  supra. 

DEFENDANT  MAY  SUE  OUT  WRIT,  IN  WHAT  CASES.  §  7502 
Comp.  Laws.     The  writ  may  be  sued  out  by  the  defendant: 

1.  From  a  final  judgment  of  conviction. 

2.  From  an  order  refusing  a  motion  in  arrest  of  judg- 
ment. 

3.  From  an  order  refusing  a  motion  for  a  new  trial. 

4.  Upon  bills  of  exception  for  any  of  the  causes  mentioned 
in  section  7439  of  this  code.     (Sec.  475,  C.  Cr.  Proc. ) 

Levisee,  p.  1345. 

Consult  sec.  7500,  Comp.  Laws,  sec.  8326,  Rev.  Codes,  supra. 

SAME,  ON  APPEAL  §  8328  Rev.  Codes  N.  D.  An  appeal 
may  be  taken  by  the  defendant: 

1.  From  a  final  judgment  of  conviction. 

2.  From  an  order  refusing  a  motion  in  arrest  of  judg- 
ment. 

3.  From  an  order  denying  a  motion  for  a  new  trial. 

4.  From  an  order  made  after  judgment  affecting  any  sub- 
stantial right  of  the  party.  (Sec.  475,  C.  Cr,  Proc,  am'd  Rev. 
Com'rs. ) 

Levisee,  p.  1345. 

STATE  MAY  SUE  OUT  WRIT  IN  WHAT  CASES.  §  7503  Comp. 
Laws.     The  writ  may  be  sued  out  by  the  state: 

1.  From  a  judgment  for  the  defendant  on  a  demurrer  to 
the  indictment. 

2.  From  an  order  arresting  the  judgment. 

3.  From  an  order  granting  a  new  trial.  (Sec.  476,  C.  Cr. 
Proc.) 


WRIT  OF  ERROR— APPEALS.  435 

Levisee,  p,  1346. 

Consult  preceding  section,  sec.  7500,  Comp.  Laws,  sec.  8326,  Rev. 
Codes,  supra. 

SAME,  ON  APPEAL  §  8329  Rev.  C(5des  N.  D.  An  appeal 
may  be  taken  by  the  state: 

1.  From  a  judgment  for  the  defendant  on  a  demurrer  to 
the  information  or  indictment. 

2.  From  an  order  granting  a  new  trial. 

3.  From  an  order  arresting  judgment. 

4.  From  an  order  made  after  judgment,  affecting  any  sub- 
stantial right  of  the  state. 

5.  From  an  order  of  the  court  directing  the  jury  to  find 
for  the  defendant.     (Sec.  476,  C.  Cr.  Proc,  am'd  Rev.  Com'rs.) 

Levisee,  p.  1846. 

TIME  WITHIN  WHICH  WRIT  SUED  OUT.  §  7504  Comp.  Laws. 
The  writ  must  be  sued  out  within  one  year  after  the  rendition 
of  the  judgment,  and  within  sixty  days  after  an  order  is  made. 
(Sec.  477.  C.  Cr.  Proc.) 

Levisee,  p.  1346, 

SAME,  AS  TO  APPEAL  §  8330  Rev.  Codes  N.  D.  An  ap- 
peal from  a  judgment  may  be  taken  within  one  year  after  its 
rendition,  and  from  an  order  within  sixty  days  after  it  is  made. 
(Sec.  477,  C.  Cr.  Proc,  am'd  Rev.  Com'rs.) 

APPEAL  HOW  TAKEN— SERVICE  AND  FILING  OF  NOTICE  OF. 
§  8331  Rev.  Codes  N,  D.  An  appeal  is  taken  by  the  party  tak- 
ing it  or  the  attorney  of  such  party,  serving  upon  the  adverse 
party,  or  the  attorney  of  the  adverse  party  who  acted  as  an  at- 
torney of  record  in  the  district  court  at  the  trial,  or  at  the  time 
the  order  was  made  or  judgment  rendered,  a  copy  of  the  notice 
of  appeal,  and  by  filing  the  original  thereof,  with  the  clerk  of 
the  district  court  of  the  county  in  which  the  order  or  judgment 
appealed  from  is  made,  entered  or  filed.  (Adopted  through 
Rev.  Com'rs.) 

See,  as  to  service  of  notice  of  appeal  in  civil  cases,  sec.  5212,  Comp. 
Laws,  sec.  5606,  Rev.  Codes,  N.  D.,  p.  204,  ante. 

Consult  next  section. 


436  CODE  OF  CRIMINAL  PROCEDURE. 

SERVICE  OF  NOTICE  BY  PUBLICATION,  WHEN— EFFECT  OF  § 
8332  Rev.  Codes  N.  D.  If  personal  service  cannot  be  made, 
the  judge  of  the  district  court  in  which  the  action  is  pending 
or  was  tried,  upon  prool  thereof,  may  make  an  order  for  pub- 
lication of  the  notice  in  some  newspaper,  for  a  period  not  ex- 
ceeding thirty  days.  Such  publication  is  equivalent  to  person- 
al service.     (Adopted  through  Rev.  Com'rs.) 

Ckinsult  preceding  section. 

WHEN  APPEAL  DEEMED  TAKEN.  §  8333  Rev.  Codes  N.  D. 
The  appeal  is  deemed  to  be  taken  when  notice  thereof  as 
as  required  by  sections  8331  or  8332  is  filed  in  the  office  of  the 
clerk  of  the  district  court  of  the  county  in  which  the  order  or 
judgment  appealed  from  is  made,  entered  or  filed,  with  evi- 
dence of  the  service  or  publication  thereof  endorsed  thereon  or 
attached  thereto.     (Adopted  through  Rev.  Com'rs.) 

Consult  two  preceding  sections. 

EXECUTION,  NOT  AFFECTED  BY  WRIT,  WHEN.  §  7505  Comp. 
Laws.  A  writ  sued  out  by  the  state,  in  no  case  stays  or  affects 
the  operation  of  a  judgment  in  favor  of  the  defendant,  until 
judgment  is  reversed.     (Sec.  478,  C.  Cr.  Proc.  ) 

Levisee,  p.  1346. 

Consult  next  two  sections. 

SAME,  AS  TO  APPEAL.  §  8334  Rev.  Codes  N.  D.  An  ap- 
peal taken  by  the  state  in  no  case  stays  or  affects  the  operation 
of  the  judgment  in  favor  of  the  defendant  until  the  judgment 
is  reversed.     (Adopted  through  Rev.  Com'rs. ) 

Consult  next  two  sections. 

WRIT  STAYS  EXECUTION  IN  CAPITAL  CASES,— CERTIFICATE  OF 
PROBABLE  CAUSE.  §  7506  Comp.  Laws.  A  writ  of  error  from 
the  supreme  court  to  remove  and  re-examine  or  review  a  judg- 
ment of  conviction,  stays  the  execution  of  the  judgment  in  all 
capital  cases,  and  in  all  other  cases,  upon  filing  with  the  clerk 
of  the  court  in  which  the  conviction  was  had,  a  certificate  of  the 
judges  of  such  court,  or  of  a  justice  of  the  supreme  court,  that 
in  his  opinion  there  is  probable  cause  for  the  writ,  but  not 
otherwise.     (Sec.  479,  C.  Cr.  Proc.) 

Levisee,  p.  1346. 


WRIT   OF   ERROR — APPEALS.  437 

Consult  two  preceding  sections. 

See,  Territory  v.  Conrad,  1  Dak.  348,  46  N.  W.  605,  cited  under  sec. 
7500,  Com  p.   Laws,  supra. 

SAME,  AS  TO  APPEAL  §  8335  Rev.  Codes  N.  D.  An  appeal 
to  the  supreme  court  from  a  judgment  of  conviction,  stays  the 
execution  of  the  judgment  in  all  capital  cases,  and  in  all  other 
cases  upon  filing  with  the  clerk  of  the  district  court  of  the 
county  in  which  the  conviction  was  had,  a  certificate  of  the 
judge  who  presided  at  the  trial,  or  of  a  judge  of  the  supreme 
court,  that  in  his  opinion  there  is  probable  cause  for  the  appeal, 
but  not  otherwise,  except  as  hereinafter  provided.  (Sec.  479, 
C.  Cr.  Proc,  am'd  Rev.  Com'rs. ) 

Consult  sec.  8334,  Rev.  Codes,  supra. 

CUSTODY  OP  DEFENDANT  BY  SHERIFF,  ON  SERVICE  OF  CER- 
TIFICA  TE.  §  7507  Comp.  Laws.  If  the  certificate  provided  for 
in  the  preceding  section  is  filed,  the  sheriff  must,  if  the  defend- 
ant be  in  his  custody,  upon  being  served  with  a  copy  thereof, 
keep  the  defendant  in  his  custody  without  executing  the  judg- 
ment, and  detain  him  to  abide  the  judgment  of  the  supreme 
court.     (Sec.  480,  C.  Cr.  Proc.) 

Levisee,  p.  1346. 

Consult  two  preceding-  sections,  and  next  section. 

[Sec.  8336.  Rev.  Codes,  N.  D.  is  the  same,  except  that  the  word  "last" 
is  substituted  for  the  word  "preceding"  and  the  concluding-  words  "of  the 
supreme  court"  are  substituted  by  the  words  "on  the  appeal."  (As  am'd 
Rev.  Com'rs.  )J- 

FURTHER  EXECUTION  OF  JUDGMENT  SUSPENDED  WHEN, 
WHERE  JUDGMENT  COMMENCED.  §  7508  Comp.  Laws;  § 
8337  Rev.  Codes  N.  D.  If,  before  the  granting  of  the  cer- 
tificate, the  judgment  has  commenced,  the  further  execution 
there  of  is  suspended,  and  upon  service  of  a  copy  of  such  cer- 
tificate the  defendant  must  be  restored,  by  the  ofl^cer  in 
whose  custody  he  is,  to  his  original  custody.  (Sec.  481,  C.  Cr. 
Proc.) 

Levisee,  p.  1346. 

Consult  sees.  7505  to  7507,  Comp.  Laws,  supra. 

fSec.  8337,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  before  the  word 
"judgment"  the  words  "execution  of  the"  are  inserted,   and  the  additional 


438  CODE  OF  CRIMINAL  PROCEDURE. 

words,   "'upon  the  sheriff  of  the  county  in  which  such  judgment  was  en- 
tered," immediately  follow  the  word  "certificate."  (As  am'd  Rev.  Com'rs.)] 

CLERK  TO  SEND  UP  TRANSCRIPT,  IN  WHAT  TIME— RECORD 
ANNEXED— ASSIGNMENT  OF  ERRORS.  §  7509  Comp.  Laws.  Upon 
the  writ  of  error  being  sued  out,  the  clerk  of  the  court  upon 
whom  it  is  served,  must,  within  ten  days  thereafter  or  within 
such  reasonable  time  as  may  be  allowed  to  him,  transmit  to  the 
clerk  of  the  supreme  court  the  writ  with  his  return  thereon,  to 
which  shall  be  annexed  and  returned  an  authenticated  copy  of 
the  record  of  this  action  as  mentioned  in  section  7473,  and  of 
all  bills  of  exception,  together  with  an  assignment  of  errors 
and  prayer  for  reversal.     (Sec.  482,  C.  Cr.  Proc. ) 

SAME,  ON  APPEAL—NO  CHARGE  BY  CLERKS —  SUPREME 
CLERK  FILES.  §  8338  Rev.  Codes  N.  D.  Upon  the  appeal  being 
taken,  it  shall  be  the  duty  of  the  clerk  of  the  district  court 
with  whom  the  notice  of  appeal  is  filed,  without  charge  and 
without  unnecessary  delay,  to  make  out  a  full  and  perfect 
transcript  of  all  the  papers  in  the  case  on  file  in  his  office,  ex- 
cept the  papers  returned  by  the  committing  magistrate  on  the 
preliminary  examination  when  there  has  been  one,  and  of  all 
the  entries  made  in  his  minutes,  and  certify  the  same  under 
his  hand  and  the  seal  of  the  court,  and  transmit  the  same  to 
the  clerk  of  the  supreme  court,  and  upon  receipt  thereof,  the 
clerk  of  the  supreme  court  must  file  the  same  and  perform  the 
same  services  as  in  civil  cases  without  charge.  (Sec.  482,  C. 
Cr.  Proc,  am'd  Rev.  Com'rs.) 

Levisee,  p.  1346. 

Consult  next  three  sections. 

As  to  clerk's  transcript,  see  Supreme  Court  Rule  7,  S.  D.,  Rule  8,  N. 
D.,  chap.  38,  Post.  As  to  assignments  of  error,  see  Court  Rules  11,  12,  S. 
D.,  Rules  8,  15,  N.  D.,  same  chapter. 

A#to  further  return  by  clerk,  see  Rule  37,  N.  D.,  chap.  38,  Post. 

Transcript  on  Writ — This  Section  Foundation  of  Court  Rule. 
In  St.  Croix  Lum.  Co.  v.  Pennington,  2  Dak.  467  (481-2),  11  N.  W. 
497  (504),  Shannon,  J.,  in  commenting  upon  the  proper  mode  of  bringing  a 
transcript  into  the  supreme  court,  and  the  then  rule  of  court  governing  the 
same,  observes:  "The  idea  of  the  rule  was,  no  doubt,  formed  from  sec.  483 
of  the  Code  of  Crim.  Proc.,  which  requires  a  certificate  similar  in  character, 


^  WRIT   OF   ERROR — APPEALS.  439 

in  addition  to  the   return  of  the   record  proper  and  the  bill  of  exceptions, 
(Code  of  Crim.  Proc,  sections  446  and  482)." 

CERTIFI0A7E0F  JUDGE  OR  JUSTICE,  CONTENT^  OF.  §  7510 
Comp.  Laws.  The  return  must  also  embrace  a  certificate  of 
the  judge  or  of  a  justice  of  the  supreme  court  that  the  record 
contains  in  itself  all  the  bills  of  exception  and  a  true  copy  of 
all  the  evidence  bearing  upon  or  necessarily  relating  to  any 
bill  of  exception.     (Sec.  484,  C.  Cr.  Proc.) 

Levisee,  p.  ,1347. 

Consult  two  preceding  sections. 

As  to  judge's  certificate,  see  Supreme  Court  Rule,  7  S.  D.,  Rule  12,  N. 
D.  chap.  38,  Post. 

See  St.  Croix  Lum.  Co.  v.  Pennington,  2  Dak.  467,  11  N.  W.  497,  cited 
under  last  section. 

Certificate  to  Record — Substance  of  Evidence.  A  certificate  of  the 
judge  that  the  record  contains,  in  substance,  all  the  evidence  given  on  the 
trial,  is  sufficient  to  authorize  the  court  to  review  the  evidence.  Territory 
V.  Stone,  2  Dak.  155,  4  N.  W.  697;  People  v.  York,  9  Cal.  421;  People  v.  Get- 
ty, 49  Cal.  581;  People  v.  Fisher,  51  Cal.  321. 

BILLS  OF  EXCEPTION-GENERAL  EXCEPTIONS  DISALLOWED— 
PARTICULAR  MATTERS  STATED.  §  7511  Comp.  Laws.  The 
judges  of  the  circuit  courts  shall  not  allow  any  bills  of  excep- 
tion which  shall  contain  the  charge  of  the  court  at  large 
to  the  jury,  upon  any  general  exception  to  the  whole  of  such 
charge,  but  the  party  excepting  shall  be  required  to  state  dis- 
tinctly the  several  and  particular  matters  of  law  in  such  charge 
to  which  he  excepts,  and  such  matters  of  law,  and  those  only, 
shall  be  inserted  in  the  bills  of  exception,  and  allowed  by  the 
court.     (Sec.  484,  C.  Cr.  Proc.) 

Levisee,  p.  1347. 

CITATION,  CLERK  ISSUES  -SERVICE  OF  ON  ADVERSE  PARTY.  § 
7512  Comp.  Laws.  Immediately  after  the  issuing  of  the  writ, 
a  citation  to  the  adverse  party  to  be  and  appear  at  the  supreme 
court,  to  be  issued  by  the  clerk  thereof,  shall  be  served  on  him 
or  his  attorney,  giving  at  least  ten  days'  notice  thereof.  (Sec. 
585,  C.  Cr.  Proc. ) 

Levisee,  p.  1347. 

As  to  citation  in  error,  see  Supreme  Court  Rules,  5,  6  and  16,  chap. 
38,  Post. 


440  CODE  OF  CRIMINAL  PROCEDURE.  ' 

CERTIORARI,  MOTION  MUST  BE  MADE  FOR,  ON  AFFIDAVIT  WHEN 
—AT  FIRST  TERM— DELAY.  §  7513  Comp.  Laws.  No  certiorari 
for  diminution,  of  the  order  shall  be  hereafter  awarded  in  any 
action,  unless  a  motion  therefor  shall  be  made  in  writing,  and 
the  facts  on  which  the  same  is  founded,  shall,  if  not  admitted 
by  the  other  party,  be  verij&ed  by  afiidavit,  and  all  motions 
for  such  certiorari  shall  be  made  at  the  first  term  of  the  entry 
of  the  action;  otherwise,  the  same  shall  not  be  granted,  un- 
less upon  special  cause  shown  to  the  court  accounting  satisfac- 
orily  for  the  delay.     (Sec.  486,  C.  Cr.  Proc.) 

Levisee,  p.  1347. 

ONE  OF  SEVERAL  DEFENDANTS  MAY  APPEAL  — BENEFIT  OF 
§  8339  Rev.  Codes  N.  D.  When  several  defendants  are  prose- 
cuted and  tried  jointly,  any  one  or  more  of  them  may  join  in 
taking  an  appeal,  but  those  who  do  not  join  shall  take  no  ben- 
efit therefrom,  yet  they  may  appeal  afterwards.  (Adopted 
through  Rev.  Com'rs. ) 

BAIL  NECESSARY  FOR  STAY,    WHEN— INABILITY  TO   GIVE.     § 

8340  Rev.  Codes  N.  D.  An  appeal  taken  by  the  defendant 
does  not  stay  the  execution  of  the  judgment  in  any  case  not  cap- 
ital, unless  bail  is  put  in,  except  when  the  judgment  is  impris- 
onment in  the  penitentiary,  and  an  appeal  is  taken  during  the 
term  at  which  the  judgment  is  rendered,  and  the  defendant  is 
unable  to  give  bail,  and  that  fact  is  satisfactorily  shown  to  the 
court,  it  may,  in  its  discretion,  order  the  sheriff  or  other  offi- 
cer having  the  defendant  in  custody,  to  detain  him  in  custody 
without  taking  him  to  the  penitentiary,  to  abide  the  judgment 
on  appeal,  if  the  defendant  desires  it  (Adopted  through  Rev. 
Com'rs. ) 

Consult  sees.  8334  to83h7,  Rev.  Codes,  supra,  and  next  section. 

CERTIFICATE  THAT  BAIL  GIVEN,  PROOEDURE  ON  DELIVERY  OF 
—DISCHARGE  FROM  CUSTODY— RETURN  OF  EXECUTION,  WHEN.     § 

8341  Rev.  Codes  N.  D.  When  an  appeal  is  taken  by  the  de- 
fendant, and  bail  is  put  in,  it  is  the  duty  of  Dhe  clerk  to  give 
forthwith  to  the  defendant,  his  agent  or  attorney,  a  certificate  un- 
der his  hand  and  the  seal  of  the  court,  stating  that  an  appeal  has 


DISMISSING   WRIT,    APPEAL,    FOR  IRREGULARITY.         441 

been  taken  and  bail  put  in,  and  the  sheriff  or  other  officer  hav- 
ing the  defendant  in  custody,  must,  upon  the  delivering  of  such 
certificate  to  him,  discharge  the  defendant  from  custody  when 
imprisonment  forms  a  part  of  the  judgment  and  cease  all 
further  proceedings  in  execution  of  the  judgment,  and  return 
forthwith  to  the  clerk  of  the  court  who  issued  it,  the  execution 
or  certified  copy  of  the  entry  of  judgment  under  which  he  act- 
ed, with  his  return  thereon,  if  such  execution  or  certified  copy 
has  been  issued;  and  if  such  execution  or  certified  copy  has 
not  been  issued,  it  shall  not  be  issued,  but  shall  abide  the  judg- 
ment on  the  appeal.  (Adopted  through  Rev.  Com'rs.) 
Consult  preceding  section. 


CHAPTER   XXXV. 

Chap.  2,  Title  10,  Code  Criminal  Procedure,  S.  D. 

Art.  2,  Chap.  13,  Code  Criminal  Procedure,  N.  D. 

dismissing  the  writ  or  appeal  for  irregularity. 

IRREGULAR  WRIT,  WHEN  MAY  BE  DISMISSED— NOTICE,  MO- 
TION PAPERS.  §  7514  Comp.  Laws.  If  the  writ  is  irregular  in 
any  substantial  particular,  but  not  otherwise,  the  court  may, 
on  any  day  in  term,  on  motion  of  the  defendant  in  error,  upon 
two  days'  notice,  with  copies  of  the  papers  on  which  the  mo- 
tion was  founded,  order  it  to  be  dismissed.  (Sec.  487,  C. 
Cr.  Proc. ) 

Levisee,  p.  1347. 

Consult  sec.  7515,  Comp.  Laws,   infra. 

See,  as  to  dismissal  of  writ,  Supreme  (Jourt  Rule  27,  S.  D.  chap.  38, 
Post. 

SAME,  AS    TO  APPEAL— EFFECT  OF  DISMISSING  APPEAL     § 

8342  Rev.  Codes.     If  the  appeal  is  irregular  in  any  substantial 

particular,  but  not  otherwise,    the  supreme  court  may  on  any 

day,  on  motion  of  the  respondent,   upon   five   days'   notice  ac- 

28i— T  P 


442  CODE  OP  CRIMINAL  PROCEDURE. 

companied  with  the  copies  of  the  papers  upon  which  the  mo- 
tion is  founded,  order  it  to  be  dismissed.  The  dismissal  of  an 
appeal  affirms  the  judgment.  But  if  the  irregularities  com- 
plained of  are  corrected  in  a  reasonable  time,  the  appeal  shall 
not  be  dismissed  and  the  supreme  court  must  fix  the  time  and 
direct  the  manner  of  correcting  the  irregularity.  (Sec.  487, 
C.  Cr.  Proc,  am'd  Rev.  Com'rs.)    x 

Levisee,  p.  1347. 

Consult  sec  8343,  Rev,  Gbdes,  infra. 

See,  as  to  dismissal  of  appeal,  Supreme  Court  Rule  32,  N.  D.  chap.  38, 
Post. 

DISMISSAL  OF  WRIT  FOR  WANT  OF  RETURN— ENLARGEMENT  OF 
TIME.  §  7515  Comp.  Laws.  The  court  may  also,  upon  like 
motion,  dismiss  the  writ,  if  the  return  is  not  made  as  provided 
in  sections  7509  and  7510,  unless  for  good  cause  they  enlarge 
the  time  for  that  purpose.     (Sec.  488,  C  Cr.  Proc.) 

DISMISSAL  OF  APPEAL,  NOT  FOR  INFORMALITY— ANOTHER  AP- 
' PEAL— NEW  UNDERTAKING.  §  8343  Rev.  Codes  N.  D.  An  ap- 
peal must  not  be  dismissed  for  any  informality  or  defect  in  the 
taking  thereof.  If  the  same  is  corrected  within  a  reasonable 
time  after  an  appeal  has  been  dismissed,  another  appeal  may 
be  taken.  If  an  undertaking  has  been  given  which  is  defective 
in  any  respect,  a  new  one  may  be  filed  on  appeal  in  the  su- 
preme  court. 

Consult  sec.  8342,  Rev.  Codes,  supra. 


CHAPTER    XXXVI. 

Chap.  3,  Title  10.  Code  Criminal  Procedure,  S.  D. 
Art.  8,  Chap.  13,  Code  Criminal  Procedure,  N.  D. 
argument  of  the  wbit  and  appeal. 

ARGUMENT,  HOW  BROUGHT  ON— NOTICE— DAY  AND  TERM- 
WHEN  DETERMINED.  §  7516  Comp.  Laws.  The  writ  of  error 
may  be  brought  to  argument  by  either  party  on  ten  days'  no 


ARGUMENT   OF  WRIT  AND   APPEAL.  443 

tice,  on  any  day,  at  a  general  or  adjourned  term  of  the  supreme 
court,  but  it  must  be  heard  and  determined  at  the  first  term 
after  the  record  is  filed,  unless  for  good  cause  shown.  (Sec. 
489,  C.  Cr.  Proc.) 

Levisee,  p.  1348. 

Consult  sec.  7517,  Comp.  Laws,  infra. 

As  to  appellate  procedure  in  supreme  court,  in  civil  cases,  see  chap.  10, 
pp.  254  to  260,  ante. 

Consult  Supreme  Court  Rules  8,  17,  21,  S.  D.,  chap.  38,  Post. 

APPEAL  STANDS  FOR  ARGUMENT  WHEN— POSTPONEMENT  OF 
HEARING— STIPULATION  FOR  HEARING.  Sec.  8344  Rev.  Codes  N. 
D.  An  appeal  in  a  criminal  action  shall  stand  for  argument 
at  the  first  term  after  the  record  is  filed,  unless  for  good  cause 
shown  the  hearing  is  postponed  to  a  subsequent  term,  but  the 
parties  or  their  attorneys  may  by  stipulation  fix  an  earlier  day 
for  the  hearing  \^ththe  approval  of  the  supreme  court.  (Sec. 
489,  C.  Cr.  Proc,  am'd  Rev.  Com'rs. ) 

Levisee,  p.  1348. 

As  to  position  of  criminal  cases  on  calendar,  see  Supreme  Court  Rules 
21,  25,  S.  D.,  chap.  38,  Fost. 

COPY  OF  RECORD,  WHO  FURNISHES,  ON  ARGUMENT— DE- 
FAULT, DISMISSAL  OF  WRIT.  §  7517  Comp.  Laws.  When  the 
writ  is  called  for  argument,  the  plaintiff  in  error  must  furnish 
each  member  of  the  court  with  a  copy  of  the  record  of  the  ac- 
tion, bills  of  exception,  and  of  the  assignment  of  errors.  If 
he  fails  to  do  so,  the  writ  must  be  dismissed,  unless,  for  cause 
shown,  the  court  otherwise  direct.     (Sec.  490,  C.  Cr.  Proc.) 

Levisee,  p.  1348. 

Consult  sec.  7516,  Comp.  Laws,  supra. 

AFFIRMANCE  ON  DEFAULT— REVERSAL  ONLY  AFTER  ARGUMENT. 
§  7518  Comp.  Laws.  The  judgment  may  be  affirmed  if  the 
plaintiff  in  error  fails  to  appear,  but  can  be  reversed  only  after 
argument,  though  the  defendant  in  error  fails  to  appear. 
(Sec.  491,  C.  Cr.  Proc.) 

Levisee,  p.  1348. 

Consult  Supreme  Court  Rule  27,  S.  D.,  chap.  38,  Post^  and  decisions 
thereunder. 


444  CODE  OF  CRIMINAL  PROCEDURE. 

SAME,  ON  APPEAL  §  8345  Rev.  Codes  N.  D.  The  judg- 
ment may  be  affirmed  if  the  appellant  fails  to  appear,  but  may 
be  reversed  only  after  argument,  though  the  respondent  fails 
to  appear.     (Sec.  491,  C.  Cr.  Proc,  am'd  Rev.  Com'rs.) 

Levisee,  p.  1348. 

Consult  Supreme  Court  Rule  32,  N.  D.,  chap.  38,  Post. 

NUMBER  OF  COUNSEL  HEARD.  §  7519  Comp.  Laws;  §  8346 
Rev.  Codes  N.  D.  Upon  the  argument  of  the  writ,  if  the  offense 
is  punishable  with  death,  three  counsel  on  each  side  must  be 
heard,  if  they  require  it.  In  any  other  case,  the  court  may,  in 
its  discretion,  restrict  the  argument  to  one  counsel  on  each  side. 
(Sec.  492,  C.  Cr.  Proc. ) 

[Sec.  8346,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  word  "ap- 
peal" is  used  in  the  place  of  the  word  "writ."    (As  am'd  Rev.  Com'rs.)] 

Levisee,  p.  1348. 

Consult  Supreme  Court  Rule  19,  S.  D.,  rule  23,  N.«D.,  chap.  38,  P(fst. 

PERSONAL  APPEARANCE  OF  DEFENDANT  UNNECESSARY.  § 
8347  Rev.  Codes  N.  D.  The  personal  appearance  of  the  de- 
fendant in  the  supreme  court  on  the  hearing  of  an  appeal,  is 
in  no  case  necessary.     (Adopted  through  Rev.  Com'rs.) 


CHAPTER  XXXVII. 

Chap.  4,  Title  10,  Code  Criminal  Procedure,  S.  D. 

Art.  4,  Chap.  13,   Code  Criminal   Procedure,  N.  D. 

jtjdgment  in  supreivie  court. 

JUDGMENT— TECHNICAL  ERRORS  AND  EXCEPTIONS  DISRE- 
GARDED. §  7520  Comp.  Laws;  §  8348  Rev.  Codes  N.  D. 
Afterhearingthew.it,  the  court  must  give  judgment  without 
regard  to  technical  errors  or  defects,  or  to  exceptions  which  do 
not  affect  the  substantial  rights  of  the  parties.  ( Sec.  493,  C. 
Cr.  Proc.) 

[Sec.  8348,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  word 
"appeal"  is  used  in  place  of  the  word''"writ."    (As  am'd  Rev.  Com'rs.)] 

Levisee,  p.  1348. 


JUDGMENT  IN  SUPREME  COUUT.  445 

Consult  next  section. 

Error    not    Prejudicial — "Technical    Errors" — Statute     Construed. 

Instate   v.  Reddington S.  D ,  64   N.    W.    170,  the  court,  in 

passing  upon  the  question  whether,  in  that  case,  injurious  or  reversible  er- 
ror had  been  committed  by  the  trial  court,  define  "injury"  as  "effect  upon 
the  result,"  declaring  that  such  is  the  doctrine  of  our  statutes,  and  (among 
others)  that  of  this  section,  which  requires  the  supreme  court,  on  writ  of  er- 
ror, "to  give  judgment  without  regard  to  technical  errors  or  defects,  or  to 
exceptions  which  do  not  aflfect  the  substantial  rights  of  the  parties." 

POWER  TO  REVERSE,  AFFIRM  OR  MODIFY  JUDGMENT  BELOW. 

§  7521  Comp.  Laws.  The  supreme  court  may  reverse,  afl&rm 
or  modify  the  judgment  or  order  of  the  circuit  court,  and  may, 
if  proper,  order  a  new  trial.     (Sec.  494,  C.  Cr.  Proc.) 

Levisee,  p.  1348. 

Consult  preceding  section. 

REVIEW  OF  INTERMEDIATE  ORDER,  ON  APPEAL  §  8349  Rev. 
Codes  N.  D.  Upon  an  appeal  taken  by  the  defendant  from  a 
judgment,  the  court  may  review  any  intermediate  order  or  rul- 
ing involving  the  merits,  or  which  may  have  affected  the  judg- 
ment adversely  to  the  defendant.  (Adopted  through  Rev. 
Com'rs. 

Consult  preceding,  and  next  section. 

Consult  also,  as  to  power  of  supreme  court  on  appeal,  sec.  5238,  Comp. 
Laws,  sec.  5628,  Rev.  Codes,  pp.  250-1,  ante. 

REVERSAL,  AFFIRMANCE,  OR  MODIFICATION  ON  APPEAL- 
NEW  TRIAL— REMAND.  §  8350  Rev.  Codes  N.  D.  The  supreme 
court  may  reverse,  affirm  or  modify  the  judgment  or  order  ap- 
pealed from,  and  may  set  aside,  affirm  or  modify  any  or  all  the 
proceedings  subsequent  to,  or  dependent  upon  such  judgment 
or  order,  and  may  if  proper,  order  a  new  trial.  In  either  case 
the  action  must  be  remanded  to  the  district  court  with  proper 
instructions,  together  with  the  opinion  of  the  court.  (Adopted 
through  Rev.  Com'rs.) 

Levisee,  p.  1348. 

Term  of  Imprisonment  Too  Long — Modification  of  Sentence.  Where 
the  judgment  of  a  circuit  court  is  erroneous  only  in  that  it  imposes  a  longer 
term  of  imprisonment  than  is  authorized  by  law,  this  court  may,  upon  writ 
of  error,  under  section  7521,  Comp.  Laws,  modify  such  judgment  by  striking 
therefrom  the  words  employed  in  designating  the  duration  of  imprison- 


446  CODE  OF  CRIMINAL  PROCEDURE. 

ment,  and  by  inserting  in  lieu  thereof  the  maximum  penalty  allowed   by 

law.     State  v.  Taylor,  ....  S.  D 64  N.  W.  548. 

Ileversal  of  Conviction  For  Errors  in  Judge's  Charge— Plea  of 
Former  Jeopardy.  When  a  defendant  in  a  criminal  action  is  convicted  of 
the  crime  charged,  and  subsequently,  on  writ  of  error  sued  out  by  himself, 
procures  in  this  court  a  reversal  of  the  judgment  of  conviction,  for  errors 
in  the  charge  of  the  trial  court  to  the  jury,  he  is  not  entitled  to  be  dis-' 
charged  on  the  ground  that  he  has  once  been  put  in  jeopardy.  State  v. 
Reddington,  ....  S.  D  ....,  66  N.  W.  464;  Whar.  Cr.  PI.  &  Pr.  (9th  Ed.) 
610;  Morrisette  v.  State,  77  Ala.  71;  Kendall  v.  State,  65  Ala.  442;  Cooley, 
Cont.  Lim.,  p.  400;  McGinn  v.  State  (Neb.),  65  N.  W.  46;  Bohanan  v.  State, 
18  Neb.  57,  24  N.  W.  390;  Sutcliffe  v.  State,  18  Ohio,  469;  State  v.  Sommers 
(Minn),  61  N.  W.  907. 

REVERSAL  WITHOUT  GRANTING  NEW  TRIAL.  DISCHARGE  OF 
DEFENDANT  ON— BAIL  EXONERATED.  §  7522  Comp.  Laws;  §  8352 
Rev.  Codes  N.  D.  If  a  judgment  against  the  defendant  is  re- 
versed without  ordering  a  new  trial,  the  supreme  court  must 
direct,  if  he  is  in  custody,  that  he  be  discharged  therefrom,  or 
if  on  bail,  that  his  bail  be  exonerated,  or  if  money  was  depos- 
ited instead  of  bail,  that  it  be  refunded  to  the  defendant. 
(Sec.  495,  C.  Cr.  Proc.) 

Levisee,  p.  1348. 

Consult  sec.  7521,  Comp.  Laws,  supra. 

NEW  TRIAL  IN  DISTRICT  COURT,  WHEN  ORDERED —  WHAT 
COUNTY.  §  8351  Rev.  Codes  N.  D.  When  a  new  trial  is 
ordered  it  must  be  had  in  the  district  court  of  the  county  from 
which  the  appeal  was  taken,  or  in  some  other  county,  or  as  di- 
rected by  the  supreme  court.  (Adopted  through  Rev. 
Com'rs. ) 

AN  AFFIRMANCE.  ORIGINAL  JUDGMENT  ENFORCED.  §  7523 
Comp.  Laws;  §  8353  Rev.  Codes  N.  D.  On  a  judgment  of 
affirmance  against  the  defendant,  the  original  judgment  must 
be  enforced.     (Sec.  496,  C.  Cr.  Proc.) 

[Sec.  8353,  Rev.  Codes,  N.  D.,  is  the  same,  except  that  the  first  clause 
reads:  "If  a  judgment  against  the  defendant  is  affirmed."  (As  am'd  Rev. 
Com'rs.)] 

Levisee,  p.  1349. 

Consult  next  section. 


JUDGMENT  IN  SUPREME  COURT,  447 

JUDGMENT  ABOVE  ENTERED  IN  MINUTES— COPY  REMITTED. 
§  7524  Comp.  Laws;  §  8354  Rev.  Codes  N.  D.  When  the  judg- 
ment of  the  supreme  court  is  given,  it  must  be  entered  in  the 
minutes,  and  a  certified  copy  of  the  entry  forthwith  remitted  to 
the  clerk  of  the  circuit  court.     (Sec.  497,  Cr.  Cr.  Proc.) 

[Sec.  8354,  Rev.  Codes.  N.  D.,  is  the  same,  except  that  the  words  "from 
which  the  appeal  was  taken"  are  added  at  the  end  of  the  section.  (As  am'd 
Rev.  Com'rs.)]     . 

Levisee,  p.  1349. 

Consult  preceding  section. 

As  to  remittitur,  see  Supreme  Court  Rule  24,  S.  D.,  Rule  29,  N.  D., 
chap.  38,  Post'^  also,  sec.  5238.  Comp.  Laws,  sec.  5628,  Rev.  Codes,  pp. 
250-1,  ante. 

JURISDICTION  OF  SUPREME  COURT  CASES,  AFTER  REMITTITUR 
—ENFORCEMENT  BELOW.  §  7525  Comp.  Laws.  After  the  cer- 
tificate of  the  judgment  has  been  remitted  to  the  court  below, 
the  supreme  court  has  no  further  jurisdiction  of  the  writ,  or  of 
the  proceedings  thereon,  and  all  orders  which  may  be  neces- 
sary to  carry  the  judgment  into  effect,  must  be  made  by  the 
court  to  which  the  certificate  is  remitted.  (Sec.  498,  C.  Cr. 
Proc. ) 

SAME.  §  8355  ReV.  Codes  N.  D.  After  the  certificate  of 
the  judgment  has  been  remitted  to  the  court  below,  the  appel- 
late court  has  no  further  jurisdiction  of  the  appeal  or  of  the 
proceedings  therein,  and  all  orders  necessary  to  carry  the  judg- 
ment into  effect  must  be  made  by  the  district  court  to  which  the 
certificate  is  remitted.  (Sec.  498,  C.  Cr.  Proc,  am'd  Rev. 
Com'rs.) 

Levisee,  p.  1349. 

PUNISHMENT  NOT  INCREASED,  ON  APPEAL  BY  STATE— AF- 
FIRMANCE—POINT OUT  ERROR.  §  8356  Rev.  Codes  N.  D.  If 
the  appeal  is  taken  by  the  state,  the  supreme  court  cannot  re- 
verse the  judgment  or  modify  it  so  as  to  increase  the  punish- 
ment, but  may  affirm  it,  and  shall  point  out  any  errprs  in  the 
proceedings  or  in  the  measure  of  punishment  and  iis  opinion 
shall  be  obligatory  on  the  district  court  as  the  correct  exposi- 
tion of  the  law.     (Adopted  throught  Rev.  Com'rs.) 


448  RtJLES  OF   SUPREME  COURT. 

Consult  next  section. 

FORMER  IMPRISONMENT,  PERIOD  OF  DEDUCTED  ON  RE-CON- 
VICTION. §  8357  Rev.  Codes  N.  D.  If  a  defendant  has  during 
the  pendency  of  an  appeal,  been  imprisoned  in  the  execution  of 
the  judgment  appealed  from,  and  upon  a  new  trial  ordered  by 
the  supreme  court  shall  again  be  convicted,  the  period  of  his 
former  imprisonment  shall  be  deducted  by  the  district  court 
from  the  period  of  imprisonment  to  be  fixed  on  the  last  verdict 
of  conviction.     (Adopted  through  Rev.  Com'rs.) 

Consult  preceding  section. 


CHAPTER  XXXVIII. 

Rules  of  the  Supreme  Court. 

South  Dakota  and  North  Dakota. 

[Author's  Note.  See  Special  Index,  at  the  end  of  this  chapter, 
showing  the  pages  on  which  the  respective  rules  are  found.] 

RULE  I,  S.  D. 

OLERK  to  reside  at  capital— not  to  practice  law.  The 
clerk  of  this  court  shall  reside  and  keep  his  office  at  the  seat  of 
government,  and  he  shall  not  practice  as  an  attorney  or  coun- 
selor in  this  or  any  other  court  while  he  shall  continue  to  be 
clerk  of  this  court. 

RULE  I,  N.  D. 

SAME— DEPUTY  IN  HIS  ABSENCE,  Until  otherwise  directed 
by  a  rule  of  court,  the  clerk  of  the  supreme  court  shall  keep 
his  office  at  the  capital  of  the  state.  When  absent  from  the 
capital,  the  office  shall  be  kept  open,  and  the  duties  of  the 
clerk  shall  be  performed  by  a  deputy.  The  clerk  shall  not 
practice  as  an  attorney  or  counselor. 

Consult  next  two  rules. 

Constitutional  Provisions,  and  Statutes,  S.  D. 

Sec.  12,  art.  5,  of  the  constitution  (Laws  1890,  p.  XIII),  provides: 
"There  shall  be  a  clerk  *  *  *  of  the  supreme  court,  who  shall  be  ap- 
pointed by  the  judges  thereof  and  who  shall  hold  office  during  the  pleasure 


RULE   2,    S.    D,    AND   N.    D.  449 

of  such  judges,  and  whose  duties  and  emolu&ients  shall  be  prescribed  by 
law,  and  by  the  rules  of  the  supreme  court  not  inconsistent  with  law." 

Chapter  74,  Sess.  Laws  of  1890  (pp.  169-70),  prescribes  the  qualifica- 
tions and  duties  of  the  clerk  of  the  supreme  court.  Sec.  1  provides  that  he 
shall  take  an  official  oath  and  shall  execute  a  bond  with  one  or  more  sure- 
ties, and  may  appoint  a  deputy,  who  must  also  take  an  oath,  which  oaths 
shall  be  filed,  etc.  Sec.  6  requires  him  to  keep  his  office  at  the  seat  of  gov- 
ernment. 

For  N.  D. 

That  part  of  sec.  93,  Constitution  of  N.  D.  referring  to  clerk  of  supreme 
court,  is  as  follows:  "There  shall  be  a  clerk  and  also  a  reporter  of  the  su- 
preme court,  who  shall  be  appointed  by  the  judges  thereof,  and  who  shall 
hold  their  respective  offices  during  the  pleasure  of  said  judges,  and  whose 
duties  and  emoluments  shall  be  prescribed  by  law  and  by  rules  of  the  su- 
preme court  not  inconsistent  with  law." 

The  following  provisions  of  the  N.  D.  statutes  relate  to  the  appoint- 
ment and  duties  of  the  clerk,  etc. 

Sec.  380,  Rev.  Codes,  N.  D.  There  shall  be  a  clerk  of  the  supreme 
court,  who  shall  be  appointed  by  the  judges  thereof,  and  who  shall  hold  his 
office  during  the  pleasure  of  such  judges.  (Sec.  1,  cnap.  170,  laws  1890, 
N.  D.) 

Sec.  381,  Rev.  Codes,  N.  D.,  requires  the  clerk  to  qualify  by  taking  the 
constitutional  oath,  and  by  giving  bond  with  surety,  conditioned  for  the 
faithful  performance  of  his  duties.  That  he  may  appoint  a  deputy,  who 
shall  also  take  and  subscribe  the  oath  and  file  same  in  the  court.  That  the 
clerk  shall  be  responsible  for  his  deputy's  acts. 

Sec.  383,  Rev.  Codes,  N.  D.,  provides,  that  the  clerk  shall  personally 
perform  all  duties  assigned  him  by  law  and  the  rules  of  court.  When  he  is 
unavoidably  absent  or  unable  for  any  cause  to  perform  his  duties,  the  deputy 
performs  them. 

'      RULE  2,  S.  D.  and  N.  D. 

DUTIES  OF  CLERK— RECORDS  NOT  TAKEN  FROM  HIS  OFFICE 
UNLESS  ORDERED— ANNOUNCES  DECISIONS.  He  shall  keep  a 
complete  record  of  all  proceedings  of  the  court,  and  shall 
perform  all  the  duties  pertaining  to  his  office.  He  must  not  allow 
any  written  opinion  of  the  court,  or  any  original  record  or  pa- 
per pertaining  to  his  office,  to  be  taken  therefrom  without  an 
order  from  the  court,  or  one  of  the  judges  thereof.  He  shall 
promptly  announce,  by  letter,  any  decision  rendered,  to  one  of 
the  attorneys  of  each  side,  when  such  attorneys  are  not  in  at- 
tendance upon  the  court. 
29— T  P 


450  RULES  OP  SUPREME  COURT. 

[Rule  2,  N.  D.,  is  the  lame,  except  that  the  word  "the"  is  substituted 
for  the  word  "all"  in  the  firtst  clause,  and  the  following  additional  words 
are  inserted  after  the  word  "rendered":  "or  order  entered  in  any  cause  or 
matter."] 

Consult  preceding  rule,  and  rule  3. 

As  to  duties  of  clerk  in  sending  down  remittitur,  see  sec.  5238,  Comp. 
Laws,  sec.  5628,  Rev.  Codes,  N.  D.,  pp.  250-1,  ante;  Rule  24,  S.  D.,  Rule  29, 
N.  D,  Post;  as  to  taxation  of  and  his  insertion  of  costs  in  judgment,  see 
Rule  26,  S.  D.,  Rule  31,  N.  D.,  Post. 

The  following  provisions,  relative  to  the  clerk's  duties,  etc.,  are  taken 
from  chap  74,  Laws  1890,  S.  D.: 

"Sec.  3.  He  shall  personally  perform  all  the  duties  assigned  him  by 
law  and  the  rules  of  said  court.  Whenever  he  is  unavoidably  absent  and 
unable  to  perform  his  duties,  his  deputies  may  perform  all  the  duties  of  said 
oflBce." 

"Sec.  5.  He  must  not  allow  any  written  opinion  of  the  supreme  court 
to  be  removed  from  his  office  except  by  the  reporter,  but  shall  permit  any 
one  to  examine  or  copy  the  same,  and  shall  when  required  make  a  copy  and 
certify  to  the  same,  or  any  syllabus  thereof,  without  charge." 

Sec.  6  requires  him  to  keep  a  complete  record  of  all  proceedings  of  the 
supreme  court. 

Sec.  7  provides: 

"He  shall  promptly  announce  by  letter  any  decisions  rendered  to  one 
of  the  attorneys  on  each  side,  when  such  attorneys  are  not  in  attendance  at 
the  place  of  court." 

The  clerk  of  the  supreme  court  and  .his  deputy  are  authorized  by  stat- 
ute to  administer  oaths.     Sec.  487,  Comp.  Laws,  sec.  460  Rev.  Codes  N.  D. 

The  following  is  from  the  N.  D.  statute: 

"Sec.  384,  Rev.  Codes,  N.  D.  Whenever  a  syllabus  is  filed  by  the  judges 
of  the  supreme  court  as  required  by  law,  the  clerk  shall  immediately  there- 
after make  and  furnish  a  copy  thereof  together  with  the  title  of  the  action 
in  which  the  same  is  rendered  to  the  publishers  of  such  daily  newspapers  in 
the  state  of  North  Dakota  as  consent  to  publish  the  same  without  charge." 
(Sec.  5,  chap.  170,  laws  1390,  N.  D.) 

RULE  3,  S.  D. 

CLERK'S  FEES— DEPOSIT  FOR— ADDITIONAL  DEPOSIT— BAL- 
ANCE OF  RETURNED.  The  appellant  or  plaintiff  in  error  on  bring- 
ing a  cause  to  this  court  shall  at  or  before  the  filing  of  the  record, 
deposit  with  the  clerk  of  said  court  the  sum  of  ten  dollars,  to 
apply  on  costs  therein;  and  in  all  cases  (except  habeas  corpus) 
originally  brought  in  this  court,    the  plaintiff  or  petitioner,  at 


RULE   3,    N.  D.  451 

or  before  the  filing  of  the  first  papers  in  the  case,  shall  deposit 
with  the  clerk  the  same  amount  for  the  same  purpose. 

Whenever  the  sum  so  deposited  is  exhaused,  but  not  before, 
the  clerk  shall  require  from  such  party,  as  a  condition  of  fur- 
ther service  in  said  cause,  an  additional  deposit  of  not  to  ex- 
ceed ten  dollars,  for  the  purpose  and  application  aforesaid. 
Any  balance  remaining  after  the  determination  of  the  cause, 
shall  be  returned  to  the  party  depositing  the  same. 

RULE  3,  N.  D.       * 

SAME.  The  appellant,  on  bringing  a  cause  to  this  court, 
shall,  at  or  before  the  filing  of  the  record,  deposit  with  the 
clerk  of  said  court  the  sum  of  eight  dollars,  to  apply  on  his 
fees;  and  in  all  cases  (except  habeas  corpus)  originally  brought 
in  this  court,  the  plaintiff  or  petitioner,  at  or  before  the  filing 
of  the  first  papers  in  the  case,  shall  deposit  with  the  clerk  the 
same  amount  for  the  same  purpose. 

Statutory  Provisions,    S.  D. 

Sec.  1436  Comp.  Laws  provides  that  the  clerk  "may  in  all  cases  required 
the  party  for  whom  any  service  is  to  be  rendered  to  pay  the  fees  in  advance 
of  the  rendition  of  such  service,  or  give  security  for  the  same,  to  be  ap- 
proved by  the  officer."    This  is  also  sec.  2104,  Rev.  Codes,  N.  D. 

Sec.  4,  chap.  74,  Laws  1890,  S.  D.  provides: 

"He  shall  receive  such  fees  as  were  formerly  allowed  to  the  clerk  of 
the  supreme  court  of  the  Territory  of  Dakota,  or  as  may  hereafter  be  fixed 
by  the  supreme  court  of  this  state,  but  shall  receive  no  per  diem." 

Sec.  4,  of  the  act  of  1890,  S.  D.  bears  upon  sec.  1406,  Comp.   Laws,  (sec. 

4,  chap.  39,  Pol.  Code,)  which  provides  that  clerks  of  the  (then.  Territorial) 
courts  "shall  be  entitled  to  charge  and  receive  for  their  fees  and  services 
the  emoluments  prescribed  by  section  828  of  the  revised  statutes  of  the 
United  States,  so  far  as  the  same  is  applicable  to  the  business  in  the  dis- 
trict courts  of  counties  and  subdivisions,  and  for  any  item  not  embraced 
within  said  section  of  the  United  States  law,  such  compensation  as  may  be 
allowed  by  the  rules  of  the  court."     Said  sec.   828  of   I'evised  statutes  of  U. 

5.  fixes  the  fees  to  be  charged,  and  governs  as  to  fees  of  clerk  of  the  su- 
preme court  of  S.  D.,  subject  to  any  change  which  the  court  may  make  by 
rule;  and  the  schedule  of  fees  is  found  subjoined  to  said  sec.  1406,  Comp. 
Laws. 

The  fees  of  the  clerk  have  never  been  fixed  by  law  of  the  Territory  of 
Dakota,  or  of  South  Dakota,  other  than  as  above  provided. 


452  RULES  OF  SUPREME  COURT. 

See  sec.  6238,  Comp.  Laws,  sec.  6628,  Rev.  Codes,  N.  D.  pp.  150-1  ante, 
as  to  clerk's  fees  for  copy  of  opinion  of  supreme  court.  But  see,  chap.  74, 
Sess.  Laws  1890,  S.  D.  sec.  5,  providing  that  he  "shall  when  requested 
make  a  copy  (of  any  written  opinion  of  the  supreme  court)  and  certify  to  the 
same,  or  any  syllabus  thereof,  without  charge." 

Statutory  Provisions,  N.  D. 

Sec.  385,  Rev.  Codes,  N.  D.,  provides  that  the  clerk  shall  receive  an 
annual  salary  of  fifteen  hundred  dollars. 

Sec.  386,  Rev.  Codes,  N.  D.,  provides  for  the  scale  of  fees  to  be  charged 
and  collect'Cd  by  tl^e  clerk;  and  sec.  387  provides  that  he  shall  keep  an  ac- 
count thereof,  and  on  the  first  days  of  January,  April,  July  and  October  of 
each  year  shall  file  with  the  state  auditor  a  statement  of  fees,  verified  by 
his  affidavit;  and  shall  also  file  with  such  statement  a  receipt  from  the  state 
treasurer,  showing  that  all  such  fees  so  received  by  him  have  been  covered 
into  the  state  treasury.  Sec.  388  provides  that,  in  addition  to  his  salary,  he 
shall  receive  for  expenses  in  attending  sessions  of  the  supreme  court  at 
points  other  than  at  the  seat  of  government,  five  cents  per  mile  for  each 
mile  necessarily  traveled,  and  two  dollars  per  day  for  actual  attendance 
thereat,  which  mileage  and  per  diem  shall  be  in  lieu  of  all  other  traveling 
expenses  allowed  him.  That  the  state  auditor  shall  draw  a  warrant  upon 
the  state  treasurer  in  favor  of  the  clerk  for  the  amount  due,  upon  the  clerk's 
filing  a  verified  itemized  statement  showing  his  mileage  and  per  diem. 

RULE  4,  S.  D. 

SERVING  NOTICE  OF  APPEAL,  HOW  AND  WHEN,  FOR  TRIAL 
WHEN— NOTICE  OF  INSISTENCE-HEARING.  The  notice  of  appeal 
shall  be  served  in  tl^e  manner  provided  by  law;  and  if  not 
served  thirty  days  before  the  first  day  of  the  next  succeeding 
term  of  the  supreme  court,  the  cause  shall  not  then  be  tried, 
unless,  when  there  is  a  shorter  service  the  respondent  shall 
within  five  days  after  service  of  the  notice  of  appeal  give  the 
appellant  notice  that  he  will  insist  on  a  hearing  at  such  term, 
in  which  event  the  same  shall  be  heard  at  such  term,  unless 
continued  upon   a  suflicient  showing  or  otherwise  disposed  of. 

RULE  4,  N.  D. 

SAME.  The  notice  of  appeal  shall  be  served  in  the  man- 
ner indicated  by  section  4  of  an  act  regulating  appeals,  ap- 
proved February  11,  1891,  and  chapter  23  of  the  Compiled  Laws 
of   1887,    and  the  acts   amendatory  thereto;  and  if  not  served 


RULE   4,    N.    D.  453 

ninety  days  before  the  first  day  of  the  next  succeeding  term  of 
the  supreme  court,  the  cause  shall  not  then  be  tried. 

See,  for  statutory  provisions  governing  service  of  notice  of  appeal  and 
notices  generally,  sec,  5215,  Comp.  Laws.  sec.  5606,  Rev.  Codes,  N.  D.,  p. 
204,  ante,  and  decisions  thereunder;  sees.  5327,  5328,  5336,  Comp.  Laws,  sees. 
5723-5732,  Rev.  Codes,  N.  D.       . 

The  reference  in  Rule  4,  N.  D.,  to  "chapter  23  of  the  Compiled  Laws 
of  1887,"  evidently  means  that  chapter  of  the  Code  of  Civil  Procedure  as  em- 
braced in  the  Compiled  Laws. 

In  connection  with  Rule  4,  consult  Rule  27,  S.  D.,  Rule  32,  N.  D.,  Post, 
relative  to  dismissal  of  appeal;  and  the  decisions  thereunder. 

(a.)     The  statute— Appellate  Jurisdiction. 

statute  Construed — Jurisdiction  Depends  on  Compliance  With — 
Service  on  Clerk.  The  statute  (sec.  5215,  Comp.  Laws,)  prescribes  the 
way  by  which  a  case  may  be  transferred  for  review  from  the  trial  court  to 
this  court,  and  the  jurisdiction  of  this  court  depends  upon  compliance  with 
its  provisions.  Valley  City  Land  &,  Irrigation  Co.  v.  Schone  et  al,  2  S.  D., 
344,  50  N.  W.  356.  It  is  just  as  essential  that  the  notice  of  appeal  be  served 
upon  the  clerk  as  upon  the  adverse  party,  and  filing  of  suph  notice  in  the 
clerk's  office  does  not  constitute  such  service  upon  the  clerk.  Id;  Peck  v. 
Phillips,  4  Dak.  430,  34  N.  W.  65.  Appellate  Jurisdiction  Must  Affirma- 
tively Appear.  The  appellate  jurisdiction  of  this  court  will  not  be  pre- 
sumed, but  must  affirmatively  appear  of  record.  Valley  City  Land  &  Irri- 
gation Co.  V.  Schone  etal,  2  S.  D.  344,  50  N.  W.  356;  Moore  v.  Vanderburg, 
90  N.  C.  10;  Plummer  v.  Bank,  (Iowa)  33  N.  W.  150;  Redhead  v.  Baker,  80 
Iowa,  162,  45  N.  W.  733;  State  v.  Brooks,  (Iowa)  50  N.  W.  43.  Service  of 
Notice  of  Appeal  Jurisdictional.  The  service  of  a  notice  of  appeal,  and 
the  transmission  of  a  certified  copy  thereof,  are  essential  to  give  the  su- 
preme court  jurisdiction.  Such  service  cannot  be  waived,  by  stipulation.  In 
the  matter  of  the  opening  of  Gold  Street,  Dead  wood,  D.  T.,  George  N.  New- 
ton, appellant,  2  Dak.  39,  3  N.  W.  311;  8  Id.  139.  Must  Serve  on  Clerk- 
Record.  Service  of  the  notice  of  appeal  upon  the  clerk  of  the  court  from 
which  the  appeal  is  taken  is  jurisaictional,  and  where  the  record  fails  to 
show  such  service  this  court  cannot  hear  the  case.  Hoffman  v.  Bank  of 
Minot  (three  cases),  4  N.  D.  473,  61  N.  W.  1031;  In  re  opening  Gold  St.  v. 
Newton,  appellant,  2  Dak.  39,  3  N.  W.  311. 
[Author's  Note.] 

The  following  are  some  Iowa  and  Minnesota  decisions  bearing  upon 
this  phase  of  the  rule: 

To  the  effect  that  notice  of  appeal  must  affirmatively  appear  of  record, 
and  is  jurisdictional,  see  Weed  v.  Parsons,  (la.)  3  N.  W.  Rep.  635;  Hanks  et 
al  V.  North  etal  (la.)  7  N.  W.  Rep    156;  Galloway  v.   Litchfield,  8  Minn. 


454  RULES  OF   SUPREME  COURT.* 

(Gil.)  160;    Buberick  v.  Magner,  9  Minn.  (Gil.)  217;  County  Comr's.  v.  Sut- 
ton 23  Minn.  299;  Gregg-  v.  Uhless,  25  Minn.  272. 

Simply  Filing  With  Clerk,  Insufficient— What  Practice  Approved. 
Under  Code  of  Civil  Procedure,  sec.  407,  providing  that  "an  appeal  must  be 
made  by  the  service  of  a  notice  in  writing  on  the  adverse  party  or  his  at- 
torney, and  on  the  clerk  with  whom  the  judgment  or  order  appealed  from 
is  entered,"  etc.,  a  notice  of  appeal  which  was  simply  filed  with  the  clerk, 
was  held  insufficient,  and  the  appeal  dismissed.  Peck  v.  Phillips,  4  Dak. 
430,  34  N.  W.  65.  The  court  in  that  case  approved  the  practice,  followed  by 
appellant,  of  serving  notice  of  appeal  on  the  attorney  of  respondent,  saying: 
"Sections  514-516,  of  the  Code  of  Civil  Procedure  prescribe  the  mode  for 
service  of  notice  in  civil  actions,  and  the  method  there  prescribed  was 
adopted  by  the  appellant  in  this  case  in  his  service  upon  the  attorney,  viz., 
service  of  a  copy,  with  proof  of  service  by  affidavit  of  the  person  serving.^' 
Service  on  Attorney  of  Party  Below,  is  Service  on  Party.  Service  of 
notice  of  appeal  on  an  attorney  for  defendants  in  whose  favor  judgment  for 
costs  was  rendered  below,  is  service  on  an  adverse  party,  under  the  statute. 
Marshall  v.  Harney  P.  T.  M.,  M.  v.  Mfg.  Co.  et  al,  1  S.  D.  350,  47  N.  W. 
290. 

(b.)     Waiuer  of  Notice — Appearance. 

Waiver  of  Appeal  Notice.  To  the  point  that  service  of  appeal  may 
be  waived,  see  Wilgus  v.  Gettings,  19  Iowa,  82;  Hohmann  v.  Eiterman,  83 
III.,  92;  R.  R.  Co.  v.  Mara,  26  Ohio  St.,  185;  Marshall  v.  Harney  Peak  Tin 
Mining,  Milling  &  Mfg.  Co.,  et  al,  1  S.  D.  350,  47  N.  W.  290;  on  rehearing,  3  S. 
D.  473,  54  N.  W.,  272.  Volxxntary  Appearance  by  Respondent,  Waiver  of 
Irregularity  in  Notice.  Where  the  appellate  court  has  jurisdiction  of  the 
subject  matter,  a  voluntary  appearance  by  respondent,  and  taking  steps  in 
the  cause  in  the  appellate  court,  is  a  waiver  of  a  mere  irregularity  in  the 
service  of  the  notice  of  appeal.  Holden  v.  Haserodt  et  al,  3  S.  D.  4.  49  N. 
W.  97.  The  court  in  that  case  did  not  decide  the  question  whether 
the  notice  of  appeal  there  in  question  was  properly  served;  but  respondent 
ontered  an  unqualified  appearance  and  served  notice  of  insistence  under 
Rule  4. 

(c.)    Irregularities. 

Title  of  Case,  Irreg^arity  in,  Does  Not  Vitiate  Notice.  A  mere 
irregularity  in  the  title  of  the  case,  ana  in  reference  to  plaintiffs  in  the  body 
of  the  notice  of  appeal,  will  not  vitiate  the  notice,  if  it  sufficiently  appears 
in  the  body  of  the  notice  from  what,  and  for  what  the  appeal  is  taken.  Mar- 
shall V.  Harney  P.  T.  M.,  M.  &  Mfg.  Co.  et  al,  1  S.  D.  350,  47  N.  W.  290. 
Date — Omission  of  Year  in  Proof  of  Service,  Immaterial.  The  omission 
of  the  year  in  the  proof  of  service  of  the  notice  of  appeal  is  not  material, 
where,  from  other  dates  upon  the  notice,  it  is  plainly  evident  when  it  was 


RULE   5,    S.    D.  ^  455 

served  in  fact,  and  that  such  omission  was  an  oversight.  Ellis  v.  Wait,  4 
S.  D.  31,  54  N.  W.  Rep.  925. 

(d. )     The  Hearing — Notice  of  Insistence. 

When  Respondent  Cannot  Have  Hearing  at  Next  Term  —  Rule 
Construed — Notice  of  Insistence.  In  Meuer  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  3  S.  D.  322,  53  N.  W.  187,  it  was  held,  that  under  this  rule  a  respondent 
could  not  obtain  a  hearing  at  the  next  succeeding  term  of  court,  where  the 
notice  of  appeal  was  served  on  the  first  day  of  such  term.  The  court,  per 
Bennett,  P.  J.,  in  the  opinion  say:  "Under  the  rule,  all  causes  in  which  the 
"notices  of  appeal  have  been  served  thirty  days  before  the  commencement 
"of  the  next  succeeding  term,  as  a  matter  of  right,  shall  be  heard  at  that 
"term;  but  if  the  notice  of  appeal  has  been  served  less  than  30  days  before 
"the  commencement  of  the  next  term,  then  the  case  shall  not  be  heard,"  un- 
less respondent  complies  with  the  latter  part  of  the  rule  as  to  insisting  upon 
a  hearing,  etc.  "In  the  one  case,  both  appellant  and  respondent  may  de- 
"mand  a  hearing;  in  the  other,  the  respondent  may  demand  a  hearing,  sub- 
"ject,  of  course,  toother  disposition  for  cause,  as  stated  in  the  rule;  but  in 
"both  cases  the  rule  applies  to  causes  where  the  appeal  has  been  perfected 
"before  the  commencement  of  the  term  of  court." 

Court  May  Fix  Time  to  Hear  Order  to  Show  Cause.  The  supreme 
court  may  fix  any  time,  within  its  discretion,  when  an  order  to  show  cause 
why  the  appeal  should  not  be  dismissed,  may  be  heard;  the  rules  of  court 
and  the  statute  law  allowing  such  practice.  State  v.  Sioux  Falls  Brewing 
Co.,  2  S.  D.  363,  50  N.  W.  629. 

(e).     The  Record,  Etc. 

Record  Recitals  as  to  Service  of  Notice  of.  See,  as  to  the  record 
on  appeal  in  its  recitals  as  to  service  of  notice  of  appeal,  Billinghurst  v. 
Spink  county  et  al,  5  S.  D.  84, 58  N.  W.  Rev.  272.  Contradictory  Abstracts. 
Where  appellant's  abstract  states  that  notice  of  appeal  was  properly  served, 
and  respondent's  abstract  denies  it,  this  court  will  go  to  the  original  rec- 
ords to  settle  the  dispute.     Kehoe  v.  Hanson  et  al,  . .  .S.  D 60  N.  W.  31. 

RULE  5,  S.  D. 

WRITS  OF  ERR(fR  AND  CITATIONS  IN  CRIMINAL  CASES— SU- 
PREME CLERK  ISSUES— TO  WHOM  DELIVERED-SERVICE  OF.     In 

criminal  cases,  immediately  after  the  issuing  of  the  writ  of  er- 
ror, a  citation  to, the  adverse  party  to  be  and  appear  at  the  su- 
preme court,  on  a  day  and  hour  to  be  therein  designated,  shall 
be  issued  by  the  clerk  of  this  court,  and  by  him  delivered  or 
sent  by  mail  to  the  plaintiff  in  error,  or  his  attorney,  who  shall 
cause  the  same  to  be  served  on  such  adverse  party  or  his  at- 
torney, at  least  ten  days  before  such  designated  day. 


456  RULES  OF  SUPREME  COURT. 

As  to  writs  of  error,  consult  sees.  7499  to  7510,  Comp.  Laws  (the  same 
ground  is  covered,  as  to  appeals,  in  sees.  8325  to  8338,  Rev.  Codes,  N.  D.)  pp. 
431-439,  ante,  and  decisions  thereunder;  and  as  to  citation  in  error,  see  sec. 
7512,  Comp.  Laws,  p.  439,  ante;  and  as  to  service  of  citation  in  state  cases, 
see  Rule  16,  S.  D.,  Post.  As  to  clerk's  certificate,  consult  llule  7,  S.  D., 
and  the  form  set  forth  in  that  rule,  Post. 

Origin  of  This  Rule.  In  St.  Croix  Lumber  Co.  v.  Pennington,  2  Dak. 
467  (481),  11  N.  W.  497  (504),  Justice  Shannon,  referring  to  the  old  Rule  13 
of  supreme  court,  requiring  the  record  as  certified  by  the  clerk,  to  contain  a 
copy  of  the  certificate  of  the  judge  to  the  original  judgment  roll,  etc.,  says: 
"The  idea  of  the  rule  was,  no  doubt,  formed  from  section  483  of  the  Code  of 
Criminal  Procedure,  which  requires  a  certificate  similar  in  character,  in 
addition  to  the  return  of  the  record  proper  and  of  the  bill  of  exceptions. 
Code  of  Crim.  Proc.,  sections  446,  482." 

RULE  6,  N.  D. 

WRITS  OF  ERROR,  ALLOWED  FROM  FINAL  DECISIONS,  BY  SU- 
PREME JUDGE— RECITALS  IN— CITATION,  DELIVERY  OF.  Writs  of 
error  in  criminal  causes  shall  be  allowed  in  all  cases  from  the 
final  decisions  of  the  district  courts  to  the  supreme  court.  The 
party  seeking  the  writ  must  apply  to  the  chief  justice  or 
to  one  of  the  judges  of  the  supreme  court,  by  petition,  verified 
by  afiidavit,  setting  forth  clearly  and  succintly  the  chief  mat- 
ters of  error  complained  of.  All  superfluities  and  unnecessary 
recitals  must  be  excluded  from  the  petition.  Immediately 
after  the  issuing  of  the  writ  of  error,  a  citation  to  the  adverse 
party  to  be  and  appear  at  the  supreme  court,  on  a  day  and 
hour  to  be  therein  designated,  shall  be  issued  by  the  clerk  of 
this  court,  and  by  him  delivered  or  sent  by  mail  to  the  plaintiff 
in  error  or  his  atterneys,  who  shall  cause  the  same  to  be  served 
on  such  adverse  party  or  his  attorney  at  least  ten  days  before 
such  designated  day. 

Sees.  473,  4&'),  C.  Cr.  Proc,  sees.  7500,  7512,  Comp.  Laws,  chap.  34, 
anU,  pp.  433-439;  Levisee,  pp.  1345,  1347. 

Consult  Rule  5,  S.  D.,  supra,  and  references  there  given. 

[Author's  Note.  It  would  seem  that,  as  to  the  North  Dakota  rules, 
all  references  to  writs  of  and  citations  in  error  are  superfluous,  as  the  new 
law  of  appeals,  governing  appellate  procedure  in  criminal  cases  (sees.  8325  to 
8341,  Rev.  Codes,  in  chap.  34,  ante),  has  done  away  with  the  common  law 
method  of  procedure.] 


RULE   7,    S.    D.  457 

RULE  6,  S.  D.  and  N.  D. 

CRIMINAL  CASES— CITATION,  WHEN  RETURNABLE— WRITS  OF 
ERROR  AND  CITATIONS  RETURNABLE  WHEN.  When  a  sufficient 
time  intervenes,  the  citation  provided  for  in  the  preceding  rule 
shall  be  made  returnable  on  the  first  day  of  the  next  succeed- 
ing term;  otherwise  it  shall  be  made  returnable  on  some  day 
during  such  term;  and  writs  of  error  in  criminal  causes  may  is- 
sue and  citations  be  made  returnable  on  any  day  during  term 
time. 

Consult  Rule  5,  supra. 

As  to  citations  in  error,  see  sec.  7512,  Comp.  Laws,  p.  439  ante; 
and  as  to  issuance  of  writs  of  error,  see  sec.  7499,  to  7510,  Comp.  Laws,  pp. 
431-439  ante. 

As  to  service  of  citation  in  cases  in  which  the  state  is  a  party,  and  in 
criminal  cases  consult  rule  16,  S.  D.  Rule 20,  N.  D.  Post. 

RULE  7,  N.  D. 

PETITION  IN  ERROR,  CLERK  FILES,  AND  WHEN— CONSEQUENCE 
OF  FAILURE.  When  a  writ  of  error  is  allowed  and  issued,  it 
shall  be  the  duty  of  the  plaintiff  in  error  forthwith  to  file  with 
the  clerk  of  this  court  the  petition  in  error,  and  a  failure  to  do 
so  shall  be  cause  for  the  dismissal  of  the  writ;  and  such  peti- 
tions shall  be  filed  by  the  clerk  as  of  the  day  when  the  writ 
was  allowed,  ^ 

Consult  Rules  5  and  6,  N.  D.,  supra. 

RULE  7,  S.  D. 

TRANSMISSION  OF  PAPERS  BY  CLERK— CONTENTS  OF  TRAN- 
SCRIPT—SAME ON  WRIT  OF  ERROR— FORM  OF  CERTIFICATE.  Up- 
on an  appeal  being  perfected,  the  clerk  of  the  court  from  which 
the  appeal  is  taken  shall  transmit  to  this  court,  the  judgment 
roll,  or  papers  in  the  case,  or  copies  thereof,  with  notice  of  ap- 
peal and  undertaking,  as  provided  by  law.  See  sec.  5217, 
Cocnpiled  Laws. 

Where  writ  of  error  is  sued  out  in  criminal  cases 
he  shall  transmit  a  complete  copy  of  the  record  and  of 
all  bills  of  exceptions,  together  with  an  assignment  of  errors 
and  prayer  for  reversal,  and  embracing  the  certificate  of  the 


458  RULES  OP  SUPREME  COURT. 

judge  provided  in  section  7510  Compiled  Laws;  and  to  certify  the 
same  under  his  hand  and  seal  of  the  court,  and  transmit  the 
same  to  the  clerk  of  this  court.  Which  certificate  shall  be  sub- 
fctantially  in  the  following  form: 

Form  of  clerk's  certificate  in  criminal  cases. 

1,  A.  B.,   clerk  of  the  circuit   (or  county)  court   within  and  for  said 

county  of in  the    Judicial 

Circuit  of  the  State  of  South  Dakota,  do  hereby  certify  and  return  in  obe- 
dience to  the  annexed  writ  of  error,  that  the  above  and  foregoing- is  a  full, 
true,  correct  and  complete  copy  and  transcript  of  the  record  of  this  action, 
to-wit:  Of  the  indictment  (or  information),  of  the  minutes  of  the  plea  (or 
demurrer)  and  of  the  minutes  of  the  trial;  of  the  charges  given  and  refused, 
and  the  endorsements  thereon;  and  of  the  judgment,  and  also  of  all  bills  of 
exceptions,  the  assignment  of  errors  and  prayer  for  reversal,  and  of  the  cer- 
tificate of  the  judge  in  the  foregoing  entitled  cause  wherein  the  State  of 

South  Dakota  is  plaintiff  and is 

defendant,  as  the  same  now  remains  of  record  in  said  court. 

In  witness   whereof  I   have  hereunto  set  my   hand    and    affixed  the 

seal  of  said  court  this day  of .,  A.  D.  189 

[L.  S.] Clerk. 

Consult  Rules  6  and  6,  S.  D.,  siipra\  and  Rule  10,  S.  D.,  Post,  as  to  or- 
der of  papers  in  judgment  roll.     Also,  decisions  under  Rule  8,  N.  D.,   infra. 

Judgnnent  Roll  Is  For  Review — Case  Must  Be  Made  Part  of — What 
Is  Judgm.ent  Roll.  An  appeal  from  a  judgment  of  a  lower  court  brings  be- 
fore the  supreme  court  the  judgment  roll  proper  for  review,  and  a  case 
which  has  not  been  settled  by  the  trial  judge  so  as  to  be  made  part  of  the 
judgment  roll  cannot  be  reviewed  on  appeal.  Fargo  et  al  v.  Palmer  et  al,  4 
Dak.  232,  29  N.  W.  463.  The  technical  judgment  roll  consists  of  the  sum- 
mons, pleadings,  verdict  or  decision,  and  judgment;  and  where  a  bill  of  ex- 
ceptions or  case,  has  been  settled,  signed  and  filed  with  the  clerk  before  en- 
try of  judgment,  it  becomes  also  part  of  such  judgment  roll;  and  exceptions 
taken,  settled,  signed  and  filed  after  entry  of  judgment,  though  not  part  of 
the  technical  judgment  roll,  become  part  of  the  record,  on  appeal  from  the 
judgment,  by  operation  of  law.  St.  Croix  Lumber  Co.  v.  Pennington,  2 
Dak.  467,  11  N.  W.  497,  Original  Papers  Sent  Up,  Unless  Otherwise 
Ordered.  In  absence  of  a  special  order  directing  a  clerk  to  send  up  a  tran- 
script, the  original  papers  should  have  been  transmitted  to  this  court. 
Under  sec.  5217,  Comp.  Laws,  the  statute,  except  in  cases  where  a  special 
order  is  made,  abrogates  the  rule  of  court  requiring  the  clerk  of  the  district 
court  to  send  up  transcripts  in  all  cases.  Jasper  v.  Hazen,  1  N.  D.  210,  46 
N.  W.  173.  Informal  and  Improper  Transcript — No  Bill  of  Exceptions.* 
In  the  case  of  Matter  of  Opening  Gold  St.,  Deadwood,  v.  Newton,  2  Dak.  149, 


RULE   7,    S.   D.  459 

3  N.  W.  329,  reference  is  made  to  the  informal  and  improper  record  trans- 
mitted on  the  appeal  in  that  case;  which  record  was  not  authenticated  by  a 
court  certificate;  nor  was  the  pretended  bill  of  exceptions  a  proper  one.  See 
opinion  of  Moody,  J.,  in  that  case.  Stipulation  as  to  Stenographers 's 
Notes,  Not  Substitute  For  Bill.  Stenographer's  or  referee's  notes  of  the 
evidence,  when  so  stipulated  by  the  parties,  cannot  take  the  place  of  a  bill 
of  exceptions  or  statement  of  the  case  settled  by  the  judge,  which  must  be 
returned  to  this  court  by  the  clerk  of  the  court  below  as  part  of  the  judg- 
ment   roll.     Merchants'  Nat.    Bank    v.    McKinney,    S.  D ,  60  N. 

W.  162.  Papers  Informally  Attached,  No  Part  of  Record.  Neither  the 
clerk  nor  the  judge  can  attach  any  papers  to  the  judgment  roll,  so  as  to 
make  them  part  of  the  record,  except  in  the  mode  prescribed  by  the  statute. 
Judge's  Certificate  Unavailing,  When.  Nor  will  the  judge's  certificate 
to  the  transcript  render  papers  part  of  the  record,  beyond  those  recognized 
by  statute.  St.  Croix  Lum.  Co.  v.  Pennington,  2,  Dak.  467,  11  N. 
W.  497.  If  the  bill  of  exceptions  is  not  presented  for  settlement 
within  the  statutory  time,  or  such  other  time  as  the  court  or  judge  muy 
order,  no  power  exists  in  the  court  or  judge  to  allow  the  bill  or  case.  Id. 
What  Objections  to  "Verdicts  Raised  Only  by  "Statement  of  Case."  There 
are  two  objections  relating  to  verdicts,  which  cannot  be  raised  upon  a  bill  of 
exceptions,  but  only  by  "a  statement  of  a  case,"  viz.,  that  the  damages  found 
are  excessive,  and  that  the  verdict  is  not  justified  by  the  evidence.     Id. 

InsuflBicient  Reference  to  Papers  in  Certificate.  Under  rule  13  (now 
rule  7,  S.  D.)  of  the  rules  of  supreme  court  of  Dakota  Territory,  the  use  of 
the  words,  "the  foregoing  papers,"  in  the  certificate,  without  naming  them, 
is  not  sufficient.  St.  Croix  Lumber  Co.  v.  Pennington,  2  Dak.  467,  UN.  W.. 
497. 

Waiver  of  Findings  on  Court  Trial,  not  Part  of  Roll — When  Such 
Waiver  Presumed.  Upon  trial  to  the  court,  the  decision  of  the  court 
should  be  tiled,  before  entry  of  judgment,  where  non-waiver  of  findings  ap- 
pears affirmatively  upon  the  record;  and  it  is  irregular,  and  reversible  error 
to  enter  judgment  without  first  filing  the  decision,  and  such  judgment 
would  be  invalid  on  its  face.  But  in  order  to  show  such  error  a  bill  of  ex- 
ceptions or  statement  is  necessary,  in  the  absence  of  which  the  supreme 
court  will  presume,  in  support  of  the  judgment  that  a  waiver  of  findings  was 
made.  Such  waiver  would  not  be  part  of  the  judgment  roll.  Gaar,  Scott  & 
Co.  V.  Spaulding,  2  N.  D.  414,  51  N.  W.  867;  Mulcahy  v.  Glazier,  51  Cal. 
626;  Smith  v.  Lawrence,  53  Cal.  34;  Carr  v.  Cronin,  54  Cal.  600;  Hayne, 
New  Tr.  &  A  pp.,  pp.,  721-2.  Decision  on  Court  Trial,  "Involves  the 
Merits."  The  decision  on  such  trial  is  a  paper  "which  involves  the  merits 
and  necessarily  affects  the  judgment,"  and  forms  part  of  the  judgment  roll, 
under  subd.  2,  sec.  5103,  Com  p.  Laws,  unless  findings  are  waived  in  writing 
filed  with  the  clerk.  Gaar,  Scott  &  Co.  v.  Spaulding,  supra;  Thomas  v. 
Tanner,  14  How  Pr.   426;  Reich  v.   Mining  Co.,  3  Utah,  254,  2  Pac.     703, 


460  RULES  OF  SUPREME  COURT. 

Presumption,  Where  no  Decision  of  Record.  Where  no  decision  is 
found  in  the  record  transmitted  to  this  court,  it  will  be  presumed  that  no 
decision  was  made  or  filed  below.  Gaar,  Scott  &  Co.  v.  Spaulding,  2  N.  D. 
414,  51  N.  W.  8(57.  Notice  of  Application  for  Judgment,  When  Waived. 
Where  judgment  was  entered  below,  upon  a  final  report  of  the  referee,  de- 
fendant's counsel  waiving  notice  of  application  for  judgment,  and  did  not 
raise  that  point  in  that  court,  held,  that  such  point  was  waived  and  cannot 
be  raised  for  the  first  lime  in  the  supreme  cc>urt.  Little  v.  Little,  2  N.  D. 
175,  49  N.  W.  736.  Order  ConflrmingRaferee'sRaport.  Whether  an  order 
confirming  report  of  referee  must  be  made  before  entry  of  judgment  can  be 
directed,  not  decided.     Id. 

Inadvertance,  Neglect,  When  no  Available  Remedy  For.  Inad- 
vertanceor  neglect  of  parties  or  counsel  to  properly  prepare  a  case  for  review 
is  not  a  matter  for  which  the  appellate  court  can  provide  a  remedy.  Gress  v. 
Evans,  1  Dak.  371  (379)  46  N.   W.  1132. 

Consult  also  Wait's  Code,  sec.  327;  Harst,  Pr.  sec.  940;  Deering's  Codes, 
Vol.  3,  sec.  940. 

[Author's  Note.  Following  are  some  decisions  of  other  states  bear- 
ing upon  this  rule.J 

Estoppel  to  Object  to  Want  of  Transcript.  Where  one  of  respond- 
ent's counsel  stated  to  appellant's  counsel  that  no  transcript  on  appeal  would 
be  required,  and  none  was  filed,  held,  that  no  negligence  appeared  and  ap- 
peal will  not  be  dismissed.     Fairburn  v.  Goldsmith  et  al  (la.),  9  N.  W.  300. 

Perfecting  Appeal — Clerk's  Fees— Jurisdiction.  Appeal  is  not  per- 
fected under  statute  until  fees  of  clerk  for  transcript  are  paid,  and  until  per- 
fected court  below  retains  jurisdiction.  Loomis  v.  McKinzie  etal  (la.),  8N. 
W.  779.  Transcript  must  be  filed  within  statutory  time  in  order  to  bring  a 
case  into  supreme  court.  County  Com'rs  v.  Saxon  (Neb.),  4  N.  W.  309. 
When  Too  Late  to  Remit  Record  Below  for  Correction.  It  is  too  late, 
after  decision  of  the  case  in  the  supreme  court,  to  remit  the  record  to  court 
below  for  correction  of  bill  of  exceptions,  and  such  is  not  a  case  of  excusable 
neglect.     Sabotta  v.  St.  P.  F.  &  M.  Ins.  Co.  (Wis.),  12  N.  W.  381. 

RULE  8,  N.  D. 

SAME— APPEAL  TRANSMITTED  BY  CLERK— WHAT  PAPERS, 
UNDER  LAW  1891 -JUDGE'S  CERJITICATE— TRANSCRIPT  CERTI- 
FIED, CONTENTS  AND  FORMS  OF  When  an  appeal  is  taken, 
either  from  a  judgment  or  an  order,  (except  in  cases  where 
by  special  order  of  the  district  court  copies  are  sent  to  the  su- 
preme court  in  lieu  of  the  originals),  the  clerk  shall  transmit 
the  original  judgment  roll  or  order  and  papers  used  upon  the 
motion  as  required  by  section  5  of  an  act  of  1891  regulating  ap- 


RULE   8,    N.    D.       '  461 

peals.  Whether  the  original  or  copies  are  transmitted,  the 
judge's  certificate  or  a  copy  thereof  as  prescribed  by  Rule  12 
must  be  appended  to  the  record  in  all  cases.  The  original  no- 
tice of  appeal  and  undertaking  must  be  transmitted  to  the  su- 
preme court.  Where  original  papers  are  sent  up,  the  certifi- 
cate of  the  clerk  of  the  district  court  must  conform  substan- 
tially to  the  requirements  of  said  section  5.  Where  copies  of 
the  record  on  appeal  are  transmitted  to  this  court,  it  shall  be 
the  duty  of  the  clerk  of  the  district  court,  without  unnecessary 
delay,  and  within  the  periods  limited  by  law,  to  make  out  a  full 
and  perfect  transcript  and  copy  of  the  judgment  roll;  or  if  the 
appeal  is  from  an  order,  or  any  part  thereof,  a  complete  copy 
of  such  order,  and  of  the  papers  upon  which  said  order  was 
granted,  and  the  certificate  of  the  judge,  as  prescribed  by  Rule 
12  of  these  rules;  or  where  a  writ  of  error  is  sued  out  in  crim- 
inal causes,  a  complete  copy  of  the  record  and  of  all  bills  of 
exception,  together  with  an  assignment  of  errors,  and  prayer 
for  reversal,  and  embracing  the  certificate  of  the  judge  of  the 
district  court  provided  in  the  Code  of  Criminal  Procedure, 
Compiled  Laws,  section  7510,  and  to  certify  the  same  under 
his  hand  and  seal  of  the  court,  and  transmit  the  same  to  the 
clerk  of  this  court,  which  certificate  shall  be  substantially  in 
the  following  form: 

[Form  of  clerk's  certificate  when  theappealis  from  a  judgment  in  civil 
cases.] 

STATE  OF  NORTH  DAKOTA,  | 

County  of  j     '  Judicial  District. 

I,  A.    B.,   Clerk   of  the  district  court  within  and  for  the  said  county  of 

,  in  tha judicial  district  of  the  State  of  North  Dakota, 

do  hereby  certify  that  the  above  and  foregoing  papers  are  the  original  no- 
tice of  appeal,  with  proof  of  service  thereof,  and  the  undertaking  given 
thereon,  and  also  the  original  judgment  roll  and  certificate  of  the  judge 
thereto  appended  (or  full,  true  and  complete  copies  of  said  judgment  roll 
and  certificate,  as  the  case  may  be)  in  the  above  entitled  action,  wherein 

is  plaintiff  and is  defendant,   as  the  same 

now  remain  of  record  in  said  court,  and  the  same  are  transmitted  to  the  su- 
preme court  pursuant  to  such  appeal. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal  of 

gaid  court  this day  of  ,  A.  D.  189 

,..,  Clerk, 


462  RULES  OF  SUPREME  COURT. 


[Form  of  clerk's  certificate  when  the  appeal  is  from  an  order.] 

STATE  OF  NORTH  DAKOTA,  ) 

County  of I  Judicial  District. 

I,   A. '  B.,  clerk  of  the  district  court   within  and   for  said  county  of 

,  in  the judicial  district  of  the  State  of  North  Dakota, 

do  hereby  certify  that  the  above  and  foregoing  is  the  original  notice  of  ap- 
peal, with  proof  of  service  thereof,  and  the  original  undertaking  given 
thereon,  also  the  original  order  from  which  an  appeal  is  taken,  with  all  ihe 
pai)ers  used  by  each  party  on  the  application  for  such  order,  with  the  cer- 
tificate of  the  judge  attached  thereto  (or  full,  true  and  compleie  copies  of 
such  order,  papers  and  certificate,  as  the  case  may  be)  in  the  above  entitled 
action,  wherein is  plaintiff  and  . . .  ^. is  defend- 
ant, as  the  same  now  remain  of  record  in  said  court,  and  the  same  are  trans- 
mitted to  the  supreme  court  pursuant  to  said  appeal. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 
of  said  court  this day  of ,  A.  D 


Clerk. 
[Form  of  Clerk's  Certificate  in  criminal  case.] 

STATE  OF  NORTH  DAKOTA,  ) 

County  of J  Judicial  District. 

I,  A.  B.,  clerk  of  the  district  court  in  and  for  the  county  of , 

in  the judicial  district  of  the  State  of  North  Dakota,  in  obedience 

to  the  annexed  writ  of  error,  do  hereby  certify  and  return  that  the  above 
and  foregoing  is  a  true,  full  and  complete  copy  and  transcript  of  the  record 
in  this  case,  to-wit:  the  indictment,  the  minutes  of  the  plea  (or  demurrer), 
the  minutes  of  the  trial,  the  charges  given  and  the  charges  refused,  with 
all  the  endorsements  thereon,  and  the  judgment,  all  bills  of  exception,  to- 
gether with  an  assignment  of  errors  and  prayer  for  reversal,  and  also  of  the 
original  certificate  of  the  judge  in  the  above  entitled  case,    wherein   the 

State  of  North  Dakota  is  plaintiff  and is  defendant,  as  the  same 

now  remains  of  record  iu  the  said  court,  and  the  same  are  transmitted  to 
the  supreme  court  pursuant  to  said  writ  of  error. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  the  seal 
of  said  court  this day  of ,  A.  D.  189 


Clerk. 

Consult  as  to  sec.  5,  act  of  1891,  sec.  5607,  Rev.  Codes,  N.  D.  p.  210,  ante; 
as  to  judge's  certificate.  Rule  12,  N.  D.  Post;  as  to  judgment  roll,  Rules  13, 
14,  N.  D.  Post;  as  to  writs  of  error.  Rules  5  to  7,  N.  D.  ante. 

As  to  assignment  of  error,  see  Rule  15  N.  D.  Post;  and  decisions  under 
above  cited  rules;  and  see  sec.  7510,  Comp.  Laws,  p.  439,  ante. 

Consult  also,  Rule  7,  S,  D.  supra,  and  decisions  thereunder. 


RULE   9,    N.    D.  ^  463 

^  Original  Papers  Must  go  up,  Unless  Otherwise  Ordered.  In  ab- 
sence of  a  special  order  directing  the  clerk  to  send  up  a  transcript,  the  or- 
iginal papers  should  have  been  transmitted  to  this  court.  Under  sec.  5217, 
Comp.  Laws,  the  statute,  except  in  cases  where  a  special  order  is  made,  ab- 
rogates the  rule  of  court  requiring  the  clerk  to  send  up  transcripts  in  all 
cases.  Jasper  v.  Hazen,  1  N.  D.  210,  46  N.  W.  173.  No  Bill  or  Statement 
Settled,  no  Specifications  in  Transcript—  No  Part  of  Judgment  Boll. 
After  an  appeal  from  a  judgment  in  favor  of  plaintiff  a  transcript  of  pro- 
ceedings at  the  trial,  embracing  the  evidence  taken  by  the  stenographer, 
was  by  order  of  court  annexed  to  the  judgment  roll,  and  same  was  sent  up  to 
this  court  as  part  of  the  record.  No  proposed  bill  of  exceptions  or  state- 
ment of  case  was  ever  served,  nor  notice  given  of  time  or  place  where  a  bill 
or  statement  would  be  presented  for  settlement  and  allowance,  and  no  order 
was  made  purporting  to  allow  a  bill  or  statement.  No  attempt  was  made  in 
the  transcript  to  specify  errors  of  law,  or  to  indicate  wherein  the  evidence  is 
insufficient  to  justify  the  findings  of  fact.  Held,  such  transcript  of  proceed- 
ings, embracing  the  evidence,  is  neither  a  bill  of  exceptions  nor  a  statement 
of  case,  and  constitutes  no  part  of  the  judgment  roll.  Wood  v,  Nissen,  2  N. 
D.  26,  49  N.  W.  103;  Harper  v.  Minor,  27  Cal.  107;  Button  v.  Reed,  25  Cal. 
479.  Stenographer's  Transcript,  no  Record.  The  stenographer's  trans- 
cript of  proceedings  had  at  the  trial,  and  used  on  a  motion  for  a  new  trial 
for  the  purpose  of  showing  errors  of  law  occurring  at  the  trial,  does  not  con- 
stitute an  authenticated  record,  and  before  this  court  can  review  errors  oc- 
curring at  the  trial  the  proceeding  must  be  brought  upon  the  record  by 
bill  of  exceptions  or  statement  of  the  case.     Goose   River  Bank  v.  Gilmore 

et  al,  3  N.  D.  188,  54  N.  W.  1032;  Wood  v.  Nisen,   2  N.  D.  26,  49  N.  W.  103. 

'  '  '  '  V 

RULE  9,  N.  D. 

RETURN  OF  APPEAL—RESPONDENT  MAY  REQUIRE,  WHEN— 
ABANDONMENT  OF— DISMISSAL  OF  APPEAL— PROVISO.  The  ap- 
pellant shall  cause  the  proper  return  to  be  made  and  filed  with 
the  clerk  of  this  court  within  sixty  days  after  the  appeal  is  per- 
fected. If  he  fails  to  do  so,  the  respondent  may,  by  notice  in 
writing,  require  such  return  to  be  filed  within  twenty  days  af- 
ter the  service  of  such  notice,  and  if  the  return  is  not  filed  in 
pursuance  of  such  notice,  the  appellant  shall  be  deemed  to 
have  abandoned  the  appeal,  and  on  an  affidavit  proving  when 
the  appeal  was  perfected  and  the  service  of  such  notice, 
and  a  certificate  of  the  clerk  of  this  court  that  no  return  has 
"been  filed,  the  respondent  may  apply  to  any  judge  of  this  court 
for  an  order  dismissing  the  appeal  for  want  of  prosecution, 


464  RULES  OF  SUPREME  COURT. 

with  costs,  and  the  court  below  may  thereupon  proceed  as 
though  there  had  been  no  appeal;  Provided,  nevertheless^  That 
this  Rule  shall  have  no  application  to  cases  where  the  respond 
ent  has  elected  to  cause  the  record  to  be  transmitted  to  the 
supreme  court  as  regulated  by  the  proviso  contained  in  section 
5  of  the  act  of  February  11,  1891,  regulating  appeals. 

For  sec.  5,  act  oi  1891,  see  sec.  5607,  Rev.  Codes,  N.  D.  p.  210, 
ante. 

Consult.  Rule  4,  N.  D.  ante\  Rule  32,  N.  D.  Post. 

Motion  to  Reinstate  Appeals — Default  not  Excused — This  Rule 
not  Void — Diligence.  The  appeals  in  these  four  cases  having  been  dis- 
missed for  failure  to  file  the  transcripts  within  the  time  prescribed  by  rule 
9,  the  court  holds,  on  motion  to  reinstate  such  appeals,  that  applicants  have 
not  excused  their  default.  One  of  the  grounds  urged  in  support  of  the  mo- 
tion is,  that  this  rule  is  void  because  it  denies  appellant  the  right  to  be  heard 
on  the  application  to  dismiss  the  appeal,  and  also  because,  as  is  claimed,  it 
seeks  to  confer  judicial  power  on  a  single  judge  in  vacation.  These  grounds 
are  not  tenable.  Walter  A.  Wood  Harvester  Co.  v.  Heidel  etal,  (Black,  In- 
tervenor.)  Duluth  Dry-Goods  Co.  v.  Same  (Two  Cases.)  Merchants'  State 
Bank  of  Fargo  v.  Same,  4  IST.  D,  427,  61  N.  W.  155;  Bowers  v.  Tallmadge,  23 
.N.  Y.  167;  Schenck  v.  Ringler  (N.  Y.  App.)  11  N.  E.  382;  Sweygert  v.  Swey- 
gert  (S.  C.)  9  S.  E.  657.  On  motion  to  reinstate  appeal  appellant  may  be 
fully  heard,  and  on  such  motion  the  decision  of  the  clerk,  or  of  a  judge  of 
the  court,  that  the  rule  has  been  violated,  is  fully  open  to  review.  Id. 
Neither  is  the  further  ground  urged,  viz.,  that  the  judge  below  did  not  de- 
termine in  time  what  papers  were  used  on  the  motions  to  dissolve  the  at- 
tachments, from  the  orders  vacating  which  these  appeals  were  taken, — 
good.  We  are  not  satisfied  that  appellants  ifsed  due  diligence  in  present- 
ing this  matter  to  the  judge.  The  courts  have  repeatedly  refused  to  rein- 
state appeals  dismissed  for  failure  to  send  up  the  record  in  time,  when  the 
facts  were  fully  as  favorable  to  the  appellants  as  in  these  cases,  and  in  some 
of  the  decisions  a  much  stronger  case  for  reinstatement  was  made.  Walter 
A.  Wood  Harvester  Co.  v.  Heidel  et  al  supra;  Grigsby  v.  Pureed,  99 
U.  S.  505;  Richardson  v.  Green,  130  U.  S.  104,  9  Sup.  Ct.  443;  Fayolle  v.  R. 
R.  Co.,  124  U.  S.  519,  8  Sup.  Ct.  588;  Spoore  v.  Fannon,  16  N.  Y.  620; 
Smith  v.  Solomon  (Cal.)  24  Pac.  286;  Tile  Works  v.  ^&\\,  (Neb.)  44  N. 
W.  45. 

RULE  8,  S.  D.,  RULE  10,  N.  D. 

CAUSES,  ORDER  OF  ON  CALENDAR— PRECEDENCE  OF  OTHER 
BUSINESS— WHEN  TRIED —  DEFENDANT'S  PRESENCE  UNNECES- 
SARY.    All  criminal  causes  shall  be  placed  lirst  on   the  calen- 


RULE   9,    S.    D.  465 

dar  in  the  order  of  the  date  of  the  filing  of  the  petition,  and 
shall  have  precedence  of  all  other  business,  and  shall  be  tried 
at  the  term  at  which  the  transcript  is  filed,  unless  continued 
or  otherwise  disposed  of;  and  shall,  if  practicable,  be  decided 
at  the  same  term,  and  the  presence  of  the  defendant  in  the  su- 
preme court  shall  in  no  case  be  necessary,  unless  especially 
ordered  by  the  court. 

Civil  cases  in  which  the  state  is  a  party  shall  immediately 
follow  in  the  order  in  which  the  original  papers  were  filed  by 
this  court. 

[Rule  10,  N.  D.,  is  the  same,  except  that  the  last  paragraph  relative 
to  civil  cases,  is  omitted.] 

As  to  notice  of  argument,  and  argument  of  writ  of  error,  on  appeal,  in 
criminal  cases,  see  sees.  7516  to  7519,  Comp.  Laws,  sees.  8344  to  8347,  Rev. 
Codes,  N.  D.,  chap.  36,  ante. 

As  to  argument  of  civil  cases  in  which  the  state  or  state  official  or 
board  is  a  party,  and  the  position  of  same  on  the  calendar,  see  sec.  4821 , 
Comp.  Laws,  sec.  5172,  Rev,  Codes,  N.  D.,  pp.  2.55-6,  ante. 

As  to  briefs  and  abstracts  in  criminal  and  state  cases,  consult  Rules  15, 
16,  S.  D.,  Rules  19,  20,  N.D.,  Post. 

Consult  also.  Rule  21,  S.  D.,  Rule  25,  N.  D.,  Posi,  as  to  call  of  cal- 
endar. 

As  to  transcript,  see  Rule  7,  S,  D  ,  Rule  8,  N.  D.,  supra. 

RULE  9,  S.  D. 

ORDER  OF  CIVIL  CAUSES  ON  CALENDAR—JUDICIAL  CIRCUITS 
—PAPERS  MUST  BE  FILED—DISTRIBUTION  OF  CALENDAR.  Fif- 
teen days  before  the  commencement  of  any  term  of  this  court 
all  civil  causes,  except  as  provided  in  Rule  8,  shall  be  placed 
on  the  calendar  by  the  clerk,  in  the  order  of  the  several  judi- 
cial circuits,  commencing  with  the  First.  Causes  coming  from 
that  circuit  shall  be  placed  at  the  head  bi  the  civil  calendar  in 
the  order  of  filing  the  original  papers  or  copies.  The  clerk 
shall  then  proceed  to  place  the  causes  from  the  Second  judicial 
circuit,  in  the  same  manner,  and  so  on,  until  the  causes  from 
all  the  judicial  circuits,  consecutively,  have  been  placed  upon 
the  calendar. 

No  case  shall  be  placed  upon  the  calendar   unless  the  orig- 
inal  papers  (or  copies)  are  filed  fifteen  days  before  commence- 
ment of  the  term,  except  as  provided  in  Rule  4. 
30— TP 


466  RULES  OF  SUPREME  COURT. 

The  calendar  shall  be  printed  and  distributed  among  the 
attorneys  having  causes  thereon. 

Consult  Rule  8,  S.  D.,  supra^  and  references  there  found. 

RULE  II,  N.  D. 

SAME,  IN  ORDER  OF  FILING  TRANSCRIPTS— ORDER  OF  NUM- 
BERING—CIVIL CAUSES  BEFORE  TERM.  All  civil  causes  shall  be 
placed  on  the  calendar  by  the  clerk  in  the  order  of  the  filing  of 
the  transcript,  and  shall  (with  the  criminal  causes)  be  num- 
bered consecutively  from  term  to  term  in  one  continued  series; 
and  no  civil  cause  shall  be  placed  on  the  calendar  after  the  day 
preceding  the  opening  of  the  court,  unless  ordered  by  the 
court. 

Consult  Rule  10,  N.  D.,  supra,  and  references  there  found. 

RULE  10,  S.  D.  RULE  14,  N.  D. 

JUDGMENT  ROLL,  PAPERS  IN— CHRONOLOGICALLY  ARRANGED 
—PAGING,  ETC.,  COPY.  In  making  up  the  judgment  rolls  or 
records  in  all  cases  to  be  brought  to  this  court,  the  parties  and 
the  clerks  of  the  courts  must  arrange  and  attach  together  the 
process,  pleadings,  orders  and  proceedings  in  the  chronologi- 
cal order  provided  in  Rule  12  for  the  preparation  of  an  abstract; 
and  when  copies  are  prepared  for  this  court  they  must  be  plain- 
ly written,  carefully  paged,  and  the  lines  on  each  page  careful- 
ly numbered. 

[Rule  14,  N.  D.  is  the  same,  except  that  the  word  "district"  precedes 
the  word  "courts,"  and  the  words  "and  attach"  are  omitted;  and  the  refer- 
ence is  to  "Rule  16"  instead  of  to  "Rule  12."] 

Consult  Rule  7,  S.  D.  Rule  8,  N.  D.  supra,  and  Rule  12,  S.  D.  and  Rule 
16,  N.  D.  infra,  and  decisions  thereunder. 

Consult  also.  Merchants'  Natl.  Bank   v.  McKinney, S.  D.   .\...,  60 

N.  W.  162,  cited  under  said  Rule  7,  and  Wood.  v.  Nissen,  2  N.  D.  26,  49  N. 
W.  103,  cited  under  Rule  8,  N.  D.  supra. 

RULE  II,  S.  D.,  RULE  15,  N.  D. 

ASSIGNMENT  OF  ERRORS,  FORM  OF -DESIGNATE  POINTS  EXCEPT- 
ED TO— WHAT  ERRORS  REGARDED— NEW  ASSIGNMENT,  WHEN.  In 
civil  actions  and  proceedings  the  appellant  shall  append  to  and 
print  with  his  abstract  3,n  ^ssignnient  of  errors,  which  pigsiga^ 


RULE   11,    S.    D.,    RULE    15,    N.  D.  467 

ment  need  follow  no  stated  form,  but  must,  in  a  way  as  specific 
as  the  case  will  allow,  point  out  the  errors  objected  to,  and 
only  such  as  he  expects  to  rely  on  and  ask  this  court  to  exam- 
ine. Among  several  points  in  a  demurrer,  in  a  motion,  in  the 
instructions,  or  in  other  rulings  excepted  to,  it  must  designate 
which  is  relied  on  as  error,  and  the  court  will,  in  its  discre- 
tion, only  regard  errors  which  are  assigned  with  the  requisite 
exactness.  And  in  criminal  causes  the  counsel  for  the  plaintiff 
in  error  may  also  file  a  new  assignment  of  errors  in  this  court, 
specifically  setting  forth  the  errors  he  desires  to  have  re- 
viewed, as  in  this  rule  provided. 

[Rule  15,  N.  D.,  is  the  same,  except  that  in  lieu  of  the  words  "append 
to  and  print  with  his  abstract,"  the  words  "subjoin  to  his  brief"  are  used; 
and  the  following  language  is  added  at  the  end:  "The  assignments  of  error 
must  not  quote  or  duplicate  the  specifications  of  error  as  appended  or  pre- 
fixed to  bills  and  statements,  but  shall  refer  to  the  page  of  the  abstract 
where  the  particular  specification  of  ^rror  is  found  and  also  to  the  page  or 
pages  of  the  abstract  in  which  the  matter  is  found  upon  which  the  error  is 
assigned."  J 

Consult,  as  to  transcript,  and  judgment  roll,  Rules  10,  7,  S.  D.,  Rules 
14,  8,  N.  D.,  supra,  and  as  to  abstract.  Rule  12,  S.  D.,  Rule  16,  N.  D.,  infra; 
and  decisions  thereunder. 

Consult  also,  as  to  exceptions,  chap.  7,  pp.  63-77,  ante,  and  particu- 
larly sec.  5081,  Com  p.  Laws,  sec.  5464,  Rev.  Codes,  N.  D.^  p.  66,  ante,  and 
decisions  thereunder;  and  the  following  special  heads,  ante,  viz.:  "Specifi- 
cation of  Particulars,"  p.  112;  "Exceptions,"  p.  137;  "Assignment  of  Er- 
ror," p.  138;  "Error— Reversal,"  p.  140;  "New  Trial,"  p.  151. 

(a).     Assignment  of  Error — Specifications. 

Particular  Error  to  be  Pointed  Out.  The  particular  error  upon 
which  the  motion  for  new  trial  or  a  reversal  of  the  judgment  is  relied  on, 
should  be  pointed  out  in  the  assignment  of  error,  and  if  not  properly  pre- 
sented to  the  court  below  on  motion  for  a  new  trial,  they  will  riot  be  con- 
sidered in  the  supreme  court.  Bush  et  al  v.  N.  P.  R.  Co.,  3  Dak.  444,  22  N. 
W.  508.*  In  Criminal  Case,  not  Specifying' Particulars  as  to  Evidence, 
Were  Considered.  Assignments  of  error  in  a  motion  for  a  new  trial  in  a 
criminal  case,  that  "the  verdict  is  contrary  to  the  evidence,"  and  "the  ver- 
dict is  not  sustained  by  the  evidence,"  without  specifyingin  what  particulars 
the  evidence  is  insufficient,  were  entertained  and  considei*ed  by  the  supreme 
court,  under  sec.  414,  Code  of  Crim.  Proc,  Dak.,  (1879)  providing  that  "the 
point  of  the  exception  must  be  particularly  stated  in  writing*,"  etc.  Terri- 
tory V.  Stone  2  Dak.  155,  4  N.  W.  697.   But  the  point  was  not  there  decided. 


468  RULES  OF  SUPREME  COURT. 

Indefinite  Assignment  Disregarded.  Where  assignments  of  error  are  of 
so  g^eneral  and  indefinite  a  nature  as  to  necessitate  an  examination  of  the 
whole  case  to  ascertain  the  point  presented  in  argument,  they  will  be  dis- 
regarded. Bill  V.  Klaus,  4  Dak.  328,  30  N.  W.  171;  Territory  v.  Stone,  2 
DakT  155,  4  N.  W.  697.  Paper  not  Allowed  or  Settled,  not  an  Assign- 
ment. A  paper  attached  to  the  judgment  roll  and  denominated  an  "as- 
signment of  error,"  but  which  does  not  appear  to  have  been  allowed  or  set- 
tled, or  to  have  ever  been  brought  to  the  attention  of  the  court  below,  is 
not  an  assignment  of  error.  Fargo  et  al  v.  Palmer  et  al,  4  Dak.  232,  29  N. 
W.  463.  Indefinite  and  Unavailing  Exception— Two  Distinct  Proposi- 
tions. An  exception  "to  that  portion  of  the  court's  charge  commencing 
with  the  words  (specifying  the  words),  and  from  there  to  the  end,''  is  not  an 
available  exception,  where  the  portion  of  the  charge  so  defined  contains  two 
or  more  distinct  and  independent  propositions.  Calkins  v.  Seabury -Calkins 
Consol.  Mining  Co.,  5  S.  D.  299,  58  N.  W.  797.  Appellant  having  failed 
to  assign  errors,  judgment  is  affirmed,  under  court  rule  15.  Globe  Invest. 
Co,  V.  Boyum  et  al,  3  N.  D.  538,  58  N.  W.  339.  Not  Based  on  Exception,  Un- 
availing. An  assignment  of  error  not  based  upon  an  exception,  is  not  available 
on  appeal.  Under  rule  16,  supreme  courtof  Dakota  Territory  (being  same  as 
rule  11  of  present  rules),  error  in  instructions,  to  be  available  on  appeal,  must 
be  specifically  pointed  out.  Diflferent  errors  cannot  be  joined  in  ore  assign- 
ment. Nor  will  assignments  of  error  not  alluded  to  in  appellant's  brief,  be 
considered.  McCormack  v.  Phillips,  4  Dak.  606,  34  N.  W.  89;  Franz  Falk 
Brewing  Co.  v.  Mielenz,  3  5  Dak.  136,  37  N.  W.  728.  See,  also,  Caulfield  v. 
Bogle,  2,  Dak.  464,  UN.  W.  511;  Bush  v.  R.  R.  Co.,  3  Dak.  445,  22  N.  W. 
508.  One  Ground  Specified,  Others  Waived.  The  ground  of  the  objection 
having  been  particularly  stated,  all  other  grounds  were  waived.  Id.  Only 
such  assignments  of  error  will  be  considered  as  can  be  examined  on  the  rec- 
ord remaining  after  striking  out  purported  evidence  from  the  abstract  pur- 
suant to  an  amended  abstract.  Hodges  etal  v.  Bierlien,  4  S.  D.  219,  56  N. 
W.  748.  Stating  Statutory  Grotinds,  When  not  Good  Assignment, 
Where  no  further  specification  of  particulars  in  which  tne  evidence  is  in- 
sufficient, than  the  statutory  grounds  for  a  new  trial,  are  stated  in  the  as- 
signments of  error,  the  argument  in  this  court,  or  in  the  statement  upon 
which  the  motion  for  a  new  trial  is  made,  such  objection  will  not  be  con- 
sidered. National  Cash  Register  Co.  v.  Ffister  et  al,  5  S.  D.  143,  58  N.  W. 
270;  Pierce  v.  Manning,  1  S.  D,  306,  51  N.  W.  332. 

Must  B.efer_to  Abstract,  or  Assignment  Ignored— When  Rule  Re- 
laxed. Where  assignments  of  error  in  this  court  do  not  refer  to  the  ab- 
stract, they  are  insufficient  assignments,  under  Rule  15,  and  will  not  be  con- 
sidered unless,  for  reasons  satisfactory  to  the  court,  said  rule  is  relaxed,  in 
furtherance  of^justice,  and  on  such  terms  as  mayjbe  deemed  just,  Hostet- 
ter  v.  Brooks  Elevator  Co.,  4  N,  D.  357,  61  N.'W.  49;  O'Brien  v.  Miller,  4 


RULE    11,    S.    D.,    RULE    15,    N.    D.  469 

N.  D.  308,  60  N.  W.  841;  Globe  Investment  Co.  v.  Boyum,  3  N.  D.  538,  68  N. 
W.  339.  No  Errors  Assigned  in  Brief— Record  Not  Examined.  In  the 
bill  of  exceptions  no  errors  are  assigned  in  the  brief  of  appellants'  counsel 
filed  in  this  court.  Held^  under  the  statutes  and  rules  of  court,  and  upon 
the  authority  of  Hostecter  v.  Elevator  Co.,  4  N.  D.  357,  61  N.  W.  49,  that 
this  court  will  not  examine  the  record  for  the  purpose  of  reviewing  errors 
in  the  procedure  below.     First  Nat.  Bk.  of  Devil's  Lake  v.  Merchant's  Nat. 

Bk.  of  Devil's  Lake  et  al N.  D ,  64  N.  W.  941.    Errors  Discussed 

in  Brief,  but  Not  in  Bill,  Not  Reviewed.  Defendant  moved  in  district 
court,  upon  a  bill  of  exceptions,  to  vacate  verdict  and  for  new  trial,  from  an 
order  denying  which  motion  he  appeals  to  this  court.  The  bill  of  excep- 
tions embodied  no  specifications  of  error.  Held,  that  alleged  errors  of  law 
occurring  at  the  trial,  and  discussed  in  appellant's  brief,  will  not  be  re- 
viewed  by   this  court.     Schmitz   v.    Heger, N.   D ,  64  N.  W.  943; 

Hostetter  v.  Elevator  Co.,  4  N.  D.  357,  61  N.  W.  49;  Illstad  v.  Anderson.  2 
N.  D.  167,  49  N.  W.  659;  First  Nat.  Bk.  of  Devil's  Lake  v.  Merchants'  Nat. 
Bk.  of  Devil's  Lake  et  al N.  D 64  N.  W.  941.  In  their  brief  ap- 
pellant's counsel  have  attempted  to  assign  certain  errors  of  law  occurring 
at  the  trial,  which  errors  are  discussed  at  length  in  such  brief.  No  Refer- 
ence in  Brief  to  Page  of  Abstract.  There  were  and  could  be  no  specifi- 
cations of  errors  in  the  abstract,  as  none  were  contained  in  the  bill;  and 
thei  e  was  no  attempt  in  the  assignments  of  error  appended  to  appellant's 
brief  to  refer  to  any  page  in  the  abstract  where  an}'  specification  of  error 
could  be  found.     Held,  that  such  attempted   assignments  of  error  were  in- 

insufflcient,   under  Rule   15.     Schmitz  v.  Heger, N.  D ,  64  N.  W. 

943;  3  Estee  PI.  &  Pr.,  sec.  4896,  and  cases  cited.  Error  Properly  Speci- 
fied in  Bill,  Rule  Relaxed  as  to  Assignments  of  Error.  Where  an  er- 
ror of  law  is  properly  specified  in  a  bill  or  statement,  this  court  (pursuant  to 
Rule  15)  will,  in  its  discretion,  relax  the  requirement  concerning  the  as- 
signments of  errors  in  this  court  when,  as  in  this  case,  to  do  so  will,  in  the 
opinion  of  this  court,  be  in  furtherance  of  justice.  First  Nat.  Bk  of  De- 
corah  v.  Laughlin  et  al,  4  N.  D.  391,  61  N.  W.  473;  O'Brien  v.  Miller,  4  N. 
D.  308,  60  N.  W.  841.  Immaterial  Errors  Not  Reviewed.  Errors  assigned 
upon  immaterial  matters  will  not  be  reviewed.  Daeley  et  al  v.  Mpls.  &  N. 
Elevator  Co..  4  N.  D.  269,  60  N.  W.  59. 

(b).     Evidence. 

'•Evidence  Insufficient  to  Justify  Decision" — Not  Good.  An  ap- 
peal alleging  generally  for  error  "that  the  evidence  was  insufficient  to  jus- 
tify the  decision,"  without  specifying  in  what  the  error  consists,  in 
compliance  with  the  statute  and  the  rules  of  court,  will  not  be 
considered.  Caulfield  v.  Bogle,  2  Dak.  464,  11  N.  W.  511;  citing  sec.  279, 
Code  Civ.  Proc.  (Comp.  Laws,  sec.  5081);  French  v.  Lancaster,  2  Dak.  276, 
9  N.  W.  716;  Brown  v.  Tolls,  7  Cal.   398.     Must  Specify  Excluded  or  Ad- 


470  RULES  OF  SUPREME  COURT. 

mitted  Evidence.  Where  an  assignment  of  error  sets  forth  that  the 
court  erred  in  admitting  or  excluding  evidence,  or  otherwise,  such  assign- 
ment must  specifically  designate  what  evidence  is  claimed  to  have  been  er- 
roneously admitted  or  excluded,  or  what  particular  act  of  the  court  is  claim- 
ed as  error.  Franz  Falk  Brewing  Co.  v.  Mielenz,  et  al,  5  Dak.  136,  37  N.  W. 
728.  An  assignment  of  error  means  the  marking  or  pointing  out  of  the  er- 
ror. Id.  Insxifficiency  of  Evidence — Must  Specify,  or  Motion  Denied. 
Where  the  notice  of  intention  to  move  for  a  new  trial  states  as  grounds 
thereof  insufficiency  of  the  evidence,  and  errors  in  law  occurring  at  the  trial, 
but  the  record  upon  which  such  motion  is  heard  contains  no  further  speci- 
fication, either  of  the  alleged  errors  in  law  or  the  particulars  in  which  it  is 
claimed  the  evidence  is  insufficient,   the  trial  court  may  properly  deny  the 

motion.     Billingsly  et-al  v.    Hiles  etal, S.  D ,  61  N.  W.  687;  Nat. 

Cash  Reg'r  Co.  v.  Pfister,  5  S.  D.  143,  58  N.  W.  270;  Holcomb  v.  Keliher,  3 
S.  D.  497,  54  N.  W.  535;  Pierce  v.  Manning,  2  S.  D.  617,  61  N.  W.  332;  11- 
stad  V.  'Anderson,  2  N.  D.  167,  49  N.  W.  659;  Hayne  New  Tr.  &  App.,  sec. 
149,  et  seq.  Insufficiency  of  Evidence— When  Question  of  Considered, 
Without  Specifications — Presumption.    In  Esshom   v.    Watertown   Hotel 

Co., S.  D.   . . . .,  63  N.  W.  229,  where  the  question  before  the  court  was 

insufficiency  of  evidence  to  sustain  the  verdict,  it  was  objected  by  appellant 
(who  sought  to  have  an  order  granting  a  new  trial  set  aside)  that  there  was 
no  specification  in  the  bill  of  exceptions  of  the  particulars  in  which  the  evi- 
dence was  insufficient,  etc.,  and  that  therefore  the  trial  court  could  not  have 
properly  reviewed  the  evidence  on  the  motion  for  a  new  trial,  and  that  for 
the  same  reason  the  supreme  court  was  precluded  from  reviewing  the  evi- 
dence, and  could  only  review  questions  involving  errors  of  law.  To  which 
contention  the  court  reply:  "This  contention  would  have  great  force,  had 
a  new  trial  been  denied,  as  this  court  would  have  presumed  in  such  case  that 
the  trial  court  denied  the  motion  for  the  reason  that  the  particulars  in 
which  the  evidence  was  insufficient  were  not  stated  in  the  bill  of  exceptions. 
But  our  understanding  of  the  practice  is  that  when  the  new  trial  is  granted 
no  presumption  will  be  indulged,  but  that  the  defect  in  the  bill  of  excep- 
tions will  be  deemed  waived,  and  the  evidence  held  as  considered  by  the 
trial  court  on  the  motion,  as  all  presumptions  are  in  favor  of  the  correctness 
of  the  rulings  of  the  trial  court." 

When  Findings  Presumed  to  Accord  With  Evidence.  When  the 
evidence  upon  which  a  referee  bases  his  findings  of  fact  is  not  preserved  in 
the  bill  of  exceptions,  and  the  insufficiency  of  the  evidence  to  sustain  such 
findings  is  not  assigned  as  error,  it  will  be  presumed  on  appeal  that  the  find- 
ings accord  with  and  are  sustained  by  the  evidence.  Adams  &  Westlake 
Co.  V.  Deyette  et  al,  5  S.  D.  418,  59  N.  W.  214;  Mfg.  Co.  v.  Galloway,  5  S. 
D.  205,  58  N.  W.  565;  Pierce  v.  Manning,  1  S.  D.  306,  51  N.  W.  332;  Haw- 
kins v.  Hubbard,  2  S.  D.  631,  51  N.  W.   774;  Burnap  v.   Bank,  96  N.  Y.  125; 


•  RULE    11,    S.    D.,    RULE   15,    N.    D.  47l 

Thomson  v.  Bank,  82  N.  Y.  1;  Conklin  v.  Hinds,  16  Minn.  457  (Gil.  411); 
Foster  v.  Voigtlander  (Kan.),  13Pac.  777.  Motion  For  New  Trial,  Record 
Must  Show  —  Presumption — Review^.  Where  it  does  not  appear  by  the 
transcript  that  a  motion  for  new  trial  was  made  either  upon  a  bill  of  excep- 
tions or  statement  of  the  case,  the  supreme  court  will  presume  there  was 
neither;  and  assignments  of  error  as  to  the  verdict  will  not  be  considered 
when  the  evidence  is  not  before  the  court.  St.  Croix  Lumber  Co.  v.  Pen- 
nington, 2  Dak.  467,  11  N.  W.  497.  Information— Presumption.  When 
the  bill  of  exceptions  does  not  contain  the  testimony  taken  before  the  state's 
attorrjey  before  filing  an  information,  this  court  will  not  act  upon  the  ques- 
tion of  its  sufficiency  or  insufficiency,  but  will  presume  that  the  state's  at- 
torney had  sufficient  evidence  to  sustain  ihe  action.  State  v.  Brennan,  2  S. 
D.  384,  50  N.  W.  625. 

(c. )     The  Record — Scope  of  Reuiew. 

Record  Must  Show  Fact  of  Ruling,  or  Facts  on  Which  Made.  An 
assignment  alleging  error  in  the  ruling  of  the  trial  court  is  unavailable 
here,  where  the  record  does  not  show  that  such  ruling  was  made,  or  the 
facts  upon  which  it  is  assumed  in  argument  to  have  been  made.  Johnson  v. 
Gilmore, S.  D ,  60  N.  W.  1070.  Review  Limited  to  Good  Assign- 
ments. Where  the  record  in  this  court  is  not  sufficiently  full  for  examina- 
tion of  the  main  questions  of  error  assigned,  while  the  appeal  will  not  be 
dismissed,  yet  the  appellant  will  be  confined  to  such  assignments  of  error  as 
may  properly  be  considered  upon  the  record  presented.  Ellis  v.  Wait,  4.  S. 
D.  31,  54  N.  W.  925. 

Stenographer's  Transcript  Not  a  Record.  The  stenographer's  tran- 
script of  pi'oceedings  at  the  trial,  used  on  motion  for  a  new  trial  for  the 
purpose  of  showing  errors  of  law  occurring  at  the  trial,  does  not  constitute 
an  authenticated  record,  and  before  this  court  can  review  errors  occurring 
at  the  trial  the  proceeding  must  be  brought  upon  the  record  by  bill  of  ex- 
ceptions or  statement  of  case.  Goose  River  Bank  v.  Gilmore  et  al,  3  N.  D. 
188,  54  N.  W.  1032.  An  informal  transcript,  embracing  evidence  extended 
by  stenographer,  annexed  by  order  of  the  court  to  the  judgment  roll,  and 
containing  no  specification  of  errors,  is  neither  a  bill  of  exceptions  nor  a 
statement  of  case,  and  no  part  of  the  judgment  roll.  Wood  v.  Nissen,  2  N. 
D.  26,  49  N.  W.  103.  Confusion  Between  Abstract  and  Assignment. 
There  being  confusion  between  the  abstract  and  the  assignment  of  error, 
and  evidence  being  objected  to  as  not  responsive,  and  the  abstract  not  con- 
taining the  question  to  which  such  evidence  was  the  answer,  the  record 
furnishes  no  ground  for  holding  the  ruling  of  the  court  below  to  be  errone- 
ous. Bailey  vs.  Chicago,  M.  &  St.  P.  Ry.  Co.,  3  S.  D.  531,  54  N.  W.  596. 
Construction  of  Contract,  When  Instruction  Presumed  Correct— No  Ex- 
ception. Where  the  trial  court  construed  a  contrac<^^  in  instructing  the 
jury,  and  no  exceptions  are  taken  to  such  instructions  by  either  party,  such 


472  RULES  OF  SUPREME  COURT.  • 

construction  will  be  assumed  to  be  correct  in  the  determination  of  such  ap- 
peal.    Brown   v.   McCall  et  al,    ....  S.  D ,60   N.  W.  151;  Jeansch   v. 

Lewis,  1  S.  D.  609,  48  N.  W.  128;  Brewing  Co.  v.  Mielenz,  5  Dak.  136,  37  N. 
W.  728.  "Verdict  Against  Law" — When  Nothing  to  Examine  Under 
Such  Assig^nment.  When  the  correctness  of  the  instructions  to  the  jury 
is  not  questioned,  and  it  is  not  claimed  that  the  verdict  is  inconsistent  with 
such  instructions,  there  is  nothing  for  this  court  to  examine  under  an  as- 
signment that  "the  verdict  is  against  the  law."    Bander  v.  Schamber  et  a>, 

S.  D ,  63  N.  W.  227;  Hayne  New  Tr.   &  App.,  sec.  99  and  cases 

cited. 

RULE  12,  N.  D. 

CERTIFICATE  OF  JUDGE  TO  JUDGMENT  ROLL— CONTENTS  OF— 
MUST  BE  IN  RECORD.  In  all  civil  and  criminal  actions  and  in 
all  special  pi^oceedings  which  are  brought  into  this  court  the 
judge  of  the  district  court  shall  append  to  the  original  judg- 
ment roll  or  record  filed  in  the  court  below,  a  certificate, 
signed  by  him,  as  follows:  In  civil  actions  and  special  pro- 
ceedings the  certificate  shall  state  in  substance  that  the  above 
and  foregoing  papers — naming  each  separately — are  contained 
in  and  constitute  the  judgment  roll  (or  other  record  as  the  case 
may  be)  and  the  whole  thereof.  The  original  certificate  (or 
copy  thereof  in  cases  where  a  copy  is  transmitted)  must  be  em- 
braced in  the  record  sent  to  this  court.  The  certificate  re- 
quired in  criminal  cases  is  indicated  by  Rule  8  of   these  rules. 

Consult  Rule  8,  N.  D.  ante. 

As  to  jadgment  roll,  see  Rule  13,  N.  D.  infra. 

Judge's  Certificate  InsufiS^cient.  The  judge's  certificate  appended  to 
the  record  sent  to  this  court  certified  only  that  such  record  contained  all 
testimony  "taken"  at  the  trial.  Held,  this  does  not  bring  the  case  within 
the  terms  of  chap.  82,  laws  1893,  requiring  that  all  evidence  "offered"  in 
such  cases  "shall  be  taken  down  in  writing,"  and  that  "all  evidence  taken  as 
provided  by  this  section  shall  be  certified  by  the  judge."    First  Nat.  Bank  of 

Devil's  Lake  v.  Merchants'  Nat.  Bank  of  Devil's  Lake  et  al, N.  D , 

64  N.  W.  941. 

RULE  13,  N.  D. 

JUDGMENT  ROLL,  CONTAINS  WHAT— BILLS  OF  EXCEPTION  AND 
STATEMENTS  TO  CONFORM  TO  STATUTE— WHEN  DISREGARDED,  OR 
STRICKEN— SPECIFICATION  OF  ERROR.  The  judgment  roll  men- 
tioned in  Rule  8   must  only  contain  the  pleadings,  the  judg- 


RULE   13,    N.    D.  473 

ment,  the  verdict  of  the  jury,  or  decision  of  the  judge,  the  re- 
port of  the  referee,  if  any,  the  offer  of  the  defendant,  if  any, 
the  bill  of  exceptions  or  statement  of  the  case,  as  settled  and 
certified  by  the  court  or  judge,  and  such  orders  and  papers  as 
have  been,  by  direction  of  the  court  or  judge,  incorporated  into 
and  made  a  jjart  of  the  judgment  roll;  also  all  orders  and  pa- 
pers which  necessarily  involve  the  merits  and  affect  the  judg- 
ment.  Bills  of  exception  and  statements  of  the  case,  whether 
to  be  used  on  a  motion  for  new  trial  or  on  appeal  without  such 
motion,  must,  when  brought  into  this  court,  be  framed  in  sub- 
stantial conformity  to  the  requirements  of  section  5090,  Com- 
piled Laws  of  1887,  and  if  such  bill  or  statement  fails  to  con- 
tain the  specifications  of  errors  of  law  complained  of,  or, 
where  the  finding  of  fact  is  attacked,  fails  to  specify  the  par- 
ticulars in  which  the  evidence  is  claimed  to  be  insufficient,  such 
bill  or  statement  will  be  disregarded.  When  a  bill  or  state- 
ment contains  superfluous  matter,  or  fails  to  contain  the  cer- 
tificate of  the  trial  judge,  as  specified  in  Rule  12  hereof,  it  will 
be  liable  to  be  stricken  out  on  motion.  The  specifications  re- 
quired by  statute  to  be  embraced  in  bills  of  exception  and  state- 
ments are  vital  parts  thereof;  and  such  specifications  shall  be 
either  prefixed  or  appended  to  all  bills  of  exception  and  state- 
ments, and  shall  be  settled  and  allowed  by  the  district  courts 
as  essential  parts  thereof.  Attention  is  directed  to  section 
5090  of  the  Compiled  Laws  of  1887. 

Consult  Rule  8,  N.  D.,  ante,  as  to  judgment  roll;  and  as  to  judge's  cer- 
tificate, see  Rule  12,  N.  D.,  supra. 

Sec.  5090,  Comp.  Laws,  is  found  on  pages  175-178,  ante. 

Bill  Containing  No  Specifications  of  Error,  Error  Disregarded  — 
Rule  Applies  to  Court  Trials.  Where  the  bill  of  exceptions  contained  no 
specifications  of  errors  of  law,  lield,  such  errors,  if  they  exist,  will  not  be 
considered  in  this  court  in  reviewing  the  case.  This  established  and  statu- 
tory rule  applies  to  cases  of  trials  to  the  court,  where  no  motion  for  new 
trial  is  made  below,  the  same  as  in  other  cases.  Laws  1891,  chap.  121;  Sup. 
Ct.  Rule  13.  Hostetter  v.  Brooks  Elevator  Co.,  4  N.  D.  357,  61  N.  W.  49. 
Exceptions  to  Findings,  When  Insufficient.  Where  exceptions  to  find- 
ings of  fact  do  not  specify  wherein  such  findings  are  not  justified  by  the  evi- 
dence, this  court  will  not  explore  the  record  to  ascertain  whether  or  not 
the  finding  is  supported  by  the  evidence.  Hostetter  v.  Brooks  Elevator  Co., 
4  N.  D.  357,  61  N.  W.  49. 


474  RULES  Of  Supreme  cotrRT. 

RULE  12,  S.    D.    RULE  16,  N.    D. 

ABSTRACT,  WHEN  SERVED,  NUMBER  OF— CONTENTS  AND 
FORM  OF — INDEX.  In  all  civil  cases  the  appellant  shall  deliver 
or  mail  to  the  clerk  of  this  court,  twenty  (20)  days  before  the 
first  day  of  the  term  of  the  court  at  which  the  cause  may  be 
heard,  at  least  ten  (10)  printed  copies  of  an  abridgement  or  ab- 
stract of  the  record  in  the  cause,  setting  forth  so  much  thereof 
only  as  is  necessary  to  a  full  understanding  of  all  the  ques- 
tions presented  to  this  court  for  decision.  He  shall  at  the  same 
time  also  deliver  a  copy  of  the  same  to  the  counsel  for  the  re- 
spondent,, and  if  there  be  more  than  one  respondent,  to  the 
counsel  of  each.  The  abstract  shall  be  prepared  and  printed 
in  substantially  the  following  form: 

In  The  Supreme  Court, 

State  of  South  Dakota, 

Term,  18... 

f  Appellant  or 
John  Doe,  Plaintiff  and   {  Respond't,  as 


or 
Richard  Roe,  Deft,  and  -j  Respond 't,  as 


[case  may  be. 

f  Appellant 
\  Respond 't, ..., 
[case  may  be. 

COMPLAINT. 

The  plaintiff  in  his  complaint  statos  his  cause  of  action  as  follows: 

(Set  out  all  the  complaint  necessary  to  an  understanding  of  the  ques- 
tions to  be  presented  to  this  court,  and  no  more.  In  setting  out  exhibits 
omit  all  merely  formal  or  irrelevant  parts,  as  for  example,  if  the  exhibit  be 
a  deed  or  mortgage  and  no  question  is  raised  as  to  the  acknowledgment, 
omit  the  acknowledgment.  When  the  defendant  has  appeared  it  is  useless 
to  incumber  the  record  with  the  summons  or  the  return  of  the  officer.) 

demurrer. 

To  which  complaint  the  defendant  demurred,  setting  up  the  following 
grounds: 

(State  only  the  grounds  of  the  demurrer,  omitting  all  formal  parts.  If 
the  pleading  was  attacked  by  motion  below  and  the  ruling  thereon  is  one  of 
the  questions  to  be  considered,  set  out  the  motion  in  the  same  way  and  con- 
tinue.) 

And  on  the day  of ,  18. . . .,  the  same  was  submitted  to 

the  court,  and  the  court  made  the  following  ruling  thereon: 

(Here  set  out  the  ruling.  In  every  instance  let  the  abstract  be  made 
in  the  chronological  order  of  the  events  in  the  case — letting  each  ruling  ap- 


RULE   12,    S.    D.,    RULE   16,    N.    D.  475 

pear  in  the  proper  connection.  If  the  defendant  pleaded  over,  and  thereby 
waived  his  right  to  appeal  from  these  rulings,  no  mention  of  them  should 
be  made  in  the  abstract;  but  it  should  continue.) 

ANSWER. 

Which  complaint  the  defendant  answered,  setting  up  the  following 
defenses: 

(Here  set  out  the  defenses,  omitting  all  formal  parts.  If  motions  or 
demurrer  were  interposed  to  the  pleading,  proceed  as  directed  with  refer- 
ence to  the  complaint. 

Frame  the  record  so  that  it  will  properly  present  all  questions  to  be  re- 
viewed and  raised  before  isbue  is  joined.  When  the  record  shows  issue  joined 
proceed.) 

On  the day  of 18. . . .,  said  cause  was  tried  by  a  jury 

(or  the  court,  as  the  case  may  be)  and  on  the  trial  the  following  proceedings 
were  had: 

(Set  out  so  much  of  the  bill  of  exceptions,  or  statement,  as  is  necessary 
to  show  the  rulings  of  the  court  to  which  exceptions  were  taken  during  the 
progress  of  the  trial;  and  if  the  evidence,  or  any  part  thereof,  be  embraced 
in  the  bill  of  exceptions,  or  statement,  epitomize  the  same  carefully  so  as 
to  only  present  the  matter  in  regard  to  which  error  is  alleged.) 

INSTRUCTIONS. 

At  the  proper  time  the  plaintiff  (or  the  defendant,  as  the  case  maj  be) 
asked  the  court  to  give  each  of  the  following  instructions  to  the  jury: 

(Set  out  the  instructions  referred  to  and  continue:) 

Which  the  court  refused  as  to  each  instruction,  to  which  several  rul- 
ings the  plaintiff  (or  defendant)  at  the  proper  time  excepted,  and  thereupon 
the  court  gave  the  following  instructions  to  the  jury: 

(Set  out  the  instructions.) 

To  the  giving  of  those  numbered  (give  the  numbers,  if  numbered)  or, 
(if  not  numbered)  to  the  giving  of  the  following  portions  thereof  (setting 
out  the  portions),  and  to  the  giving  of  each  thereof,  plaintiff  (or  defendant) 
at  the  proper  time  specifically  excepted. 

VERDICT. 

On  the day  of 18 the  jury  returned  the  following  ver- 
dict into  court: 

(Set  out  the  verdict.) 

(If  the  case  be  tried  by  the  court,  instead  of  the  instructions  and  ver- 
dict of  the  jury,  set  out  so  much  of  the  findings  of  fact  and  conclusions  of 
law,  and  requests  for  findings,  if  any,  together  with  the  exceptions  relating 
thereto,  as  may  be  necessary  to  present  the  errors  complained  of. ) 
MOTION  FOR  NEW  TRIAL. 

On  the day  of 18. . .  .the  plaintiff  (or  defendant)  moved 

for  a  new  trial  upon  the  following  grounds: 


476  RULES  OF  supreme'  court. 

(Set  out  the  grounds  for  new  trial.) 

On  the day  of 18 the  court  made  the  following  rulings 

upon  said  motion: 

(Set  out  the  record  of  the  rulings)  to  which  the  plaintiff  (or  defendant) 
at  the  proper  time  excepted. 

JUDGMENT. 

On  the day  of 18 the  following  judgment  was  entered: 

(Set  out  the  judgment  entry  (or  order)  appealed  from.) 

On  the day  of 18 the  plaintiff  (or  defendant)  perfected 

an  appeal  to  the  supreme  court  of  the  State  of  South  Dakota  by  serving 
upon  the  defendant  (or  plaintiff,  as  the  case  may  be)  and  the  clerk  of  the 

court  of county,  ^  notice  of  appeal,  specifying  what  was 

appealed  from  and  what  orders,  if  any,  are  sought  to  be  reviewed,  and  by 
serving  and  filing  an  undertaking  [when  required  by  law.] 
(If  supersedeas  bond  was  filed  state  the  fact.) 

ASSIGNMENT   OF  ERROR. 

And  the  appellant  herein  says  there  is  manifest  error  on  the  face  of 
the  record,  in  this: 

(Set  out  the  errors  assigned.) 

(This  outline  is  presented  for  the  purpose  of  indicating  the  character  of 
the  abstracts  contemplated  by  the  rule,  which,  like  all  the  rules,  is  to  be 
substantially  complied  with.  Of  course  no  formula  can  be  laid  down  appli- 
cable to  all  cases.  The  rule  to  be  observed  in  abstracting  a  case  is:  Pre- 
serve everything  material  to  the  question  to  he  decided,  and  omit  everything  else.) 

The  abstract  must  be  accompanied  by  a  complete  index  of  its  contents. 

[Rule  16,  N.  D.,  is  the  same,  except: 

1.  That  that  part  thereof  under  the  head  of  "Answer,"  within  the  last 
parenthesis,  is  as  follows: 

"(Set  out  so  much  of  the  bill  of  exceptions,  or  statement  containing  ex- 
ceptions, as  is  necessary  to  show  the  rulings  of  the  court  to  which  excep- 
tions were  taken  during  progress  of  the  trial;  and  if  the  evidence  or  any  part 
thereof  be  embraced  in  the  bill  of  exceptions,  or  statement  containing  ex- 
ceptions, epitomize  the  same  by  excluding  all  superfluous  matter  and  un- 
necessary verbiage.  Where  a  review  of  the  verdict  or  findings  of  fact  is 
sought  upon  the  ground  that  the  evidence  is  insufficient  to  justify  the  same, 
the  evidence  shall  be  reduced  to  a  narrative  form,  except  in  those  particu- 
lars where  a  rescript  of  the  stenographer's  report  becomes  necessary  to 
preserve  the  sense  or  present  the  particular  points  of  error.  In  statements, 
not  less  than  in  bills  of  exception,  all  superfluous  matter,  including  all  evi- 
dence not  bearing  upon  specifications,  is  required  to  be  rigorously  excluded. 
A  stenographic  report  of  the  trial,  if  settled  and  allowed,  does  not  constitute 
a  bill  of  exceptions  or  a  statement  of  a  case  within  the  meaning  of  the  law, 
and  will  not  be  so  regarded  by  this  court.     Questions  propounded   upon 


RULE    12,    S.    D.,    RULE    16,    N.,   D.  477 

which  no  rulings  are  made,  and  ohjections  followed  by  rulings  against  the 
successful  party,  should  be  eliminated  from  the  record,  unless  their  preser- 
vation is  necessary  to  the  sense.)" 

2.  Under  the  heading  "Motion  for  New  Trial,"  the  introductory  parts 
are  as  follows:  "On  the day  of  ,  189 ,  the  plaintiff  (or  de- 
fendant) served  notice  of  intention  to  move  for  a  new  trial,  as  follows: 

"(Here  insert  notice  of  intention,  omitting  all  forn#il  parts.) 

"On  the day  of ,  189 ,  the  plaintiff  (or  defendant) 

moved  for  a  new  trial  upon  the  grounds  therein  specified." 

3.  The  heading  "Assignment  of  Error,"  and  the  following  matter  set 
forth  thereunder,  is  omitted,  viz:  "And  the  appellant  herein  says  there  is 
manifest  error  on  the  face  of  the  record,  in  this:  (Set  out  the  errors  as- 
signed.)" 

4.  The  following  appears  in  the  N.  D.  Rule,  after  the  matter  con- 
tained within  the  final  parenthesis  under  the  heading  "Assignment  of  Er- 
ror" as  found  in  the  S.  D.  Rule,  but  under  the  heading  "Judgment"  in  the 
N.  D.  Rule,  viz: 

"This  rule,  with  some  additions,  has  been  borrowed  from  the  rules  of 
the  late  Supreme  Court  of  the  Territory,  and  we  have  continued  it  in  force 
as  a  rule  governing  the  preparation  of  abstracts  of  the  record  proper.  But 
in  this  court  we  adopt  it  chiefly  for  still  another  purpose  for  which  it  is  well 
adapted,  viz:  as  a  guide  andinile  to  be  observed  in  framing  statements  aiid  bills  of 
exception  tobe settled  in  the  district  courts.  Bills  of  exception  and  statements 
must  be  framed  substantially  in  accordance  with  the  requirements  of  the 
statute  and  this  rule  of  court.  When  so  framed  the  work  of  abstracting 
the  record  for  use  in  this  court  will  be  reduced  to  the  minimum,  and  will 
generally  relate  only  to  matters  of  form) 

"The  abstract,  when  it  consists  of  more  than  five  printed  pages,  must 
be  followed  by  an  index  of  its  contents.  In  exceptional  cases  where  a  refer- 
ence to  the  record  proper  is  desired  the  appellant  must,  by  apt  words,  refer 
the  court  to  such  parts  of  the  record  as  he  desires  to  have  examined.  All 
material  parts  of  the  record  should  be  embodied  in  the  abstract  or  amended 
abstract,  and  this  court  will,  as  a  rule,  decline  to  explore  the  record  coming 
up  from  the  district  court."] 

Consult,  as  to  respondent's  abstract.  Rule  13,  S.  D.,  Rule  17,  N.  D.,  in- 
fra; as  to  transcript,  Rule  7,  S.  D.,  Rule  8,  N.  D.,  anie;  as  to  judgment 
roll.  Rule  10,  S.  D.,  Rule  14,  N.  D.,  ante;  as  to  assignment  of  errors,  Rule 
11,  S.  D.,  Rule  15,  N.  D.,  supra. 

As  to  printing  of  abstracts  and  briefs,  see  sec.  5631,  5632,  Rev.  Codes, 
N.  D.,  p.  254,  ante. 

As  to  complaint,  see  sees.  4905  to  4907,  Comp.  Laws,  sees.  5265,  5266, 
Rev.  Codes,  N.  D. 

As  to  demurrer,  see  sees.  4908  to  4913,  Comp.  Laws,  sees.  5267  to  5272, 
*Rev.  Codes,  N.  D. 


478  RULES  OF  SUPREME  COURT. 


As  to  answer,  see  sees.  4914  to  4919,  Comp.  Laws,  sees.  5273  to  5276, 
Rev.  Codes,  N.  IX;  as  to  reply,  see  sees.  4918  to  4920,  Comp.  Laws,  sees. 
5277  to  5279,  Rev.  Codes,  N.  D.;  as  to  motions,  see  sees.  5323  to  5326,  Comp. 
Laws,  sees.  5714  to  5722,  Rev.  Codes,  N.  D. 

As  to  trial,  in  circuit  or  district  court,  in  civil  cases,  see  chap.  3,  pp. 
12  to  32.  ante;  and  in  criminal  cases,  chap.  29,  pp.  371  to  401,  ante. 

As  to  instructions,  in  civil  cases,  see  sec.  5048,  Comp.  Laws,  sec.  5432, 
Rev.  Codes,  N.  D.,  pp.  14, 15,  ante;  in  criminal  cases,  various  sections  in  chap. 
29,  p.  371,  et  seq,  ante. 

As  to  verdict,  in  civil  cases,  see  chap.  4,  pp.  32  to  45,  ante;  in  criminal 
cases,  chap.  31,  pp.  404  to  414,  ante. 

As  to  exceptions,  in  civil  cases,  see  chap.  7,  pp.  63  to  77,  ante;  in  crim- 
inal cases,  chap.  32,  pp.  414  to  424,  ante. 

As  to  new  trial,  in  civil  cases,  see  chap.  8,  pp.  77  to  189,  ante;  in  crim- 
inal cases,  chap.  33,  pp.  424  to  431,  ante. 

As  to  judgment,  in  civil  cases,  see  sees.  5095  to  5109,  Comp.  Laws,  sees. 
5479  to  5499,  Rev.  Codes,  N.  D.;  in  criminal  cases,  sees.  7455  to  7473,  Comp. 
Laws,  sees.  8278  to  8297,  Rev.  Codes,  N.  D. 

As  to  appeal,  in  civil  cases,  see  chap.  9,  pp.  189  to  254,  ante;  as  to  writ 
of  error,  and  appeal,  in  criminal  cases,  chap.  34,  pp.  431  to  441,  ante. 

(a.)     Contents  of  Abstract — Record — Practice. 

Abstract  Is  Record  Here,  and  Must  Shew  Jurisdiction.  The  print- 
ed abstract  prepared  and  served  by  appellants,  and  consented  to  by  respond- 
ent, is  the  record  upon  which  a  case  is  heard  in  this  court,  and  such  ab- 
stract must  affirmatively  show  the  jurisdiction  of  this  court,  or  the  appeal 
will  be  dismissed.  Valley  City  Land  &  Irrigation  Co.  v.  Schone  et  al,  2  S. 
D.  344,  50  N.  W.  356;  First  National  Bank  v.  Northwestern  Elevator  Co., 
2  S.  D.  356,  50  N.  W.  356;  Moore  v.  Vanderburg,  90  N.  C.  10;  Plummer 
V.  Bank  (Iowa),  33  N.  W.  150;  Redhead  v.  Baker,  80  Iowa  162,  45  N.  W. 
733;  State  v.  Brooks  (Iowa),  50  N.  W.  43.  Abstract  Showing'  Notice  of 
Appeal — Favorable  Presumption — Same  as  to  Pleadings  and  Evidence. 
A  statement  in  appellant's  abstract  that  due  service  of  *the  notice  of  appeal 
and  undertaking  was  made  and  admitted  will  be  accepted  as  true,  in  ab- 
sence of  an^  thing  to  the  contrary,  and  it  will  be  presumed  that  the  ap- 
peal was  taken  and  perfected  as  required  by  statute.     Bell   v.  Thomas, 

S.  D ,63  N.  W.  907;  Day  v.  Ins.  Co.,  72  la.  597,  34  N.  W.  435.     It  will 

further  be  presumed,  in  absence  of  an  amended  or  iidditional  abstract,  that 
appellant's  abstract  contains  all  the  pleadings,  files,  and  evidence  that  the 
parties  and  the  trial  court  deemed  essential  to  a  proper  determination  of  the 
questions  presented  on  appeal.  Bell  v.  Thomas,  supra;  Randall  v.  Burk 
Tp.,  4.  S.  D.  337,  57  N.  W.  4.  Abstract  to  Correspond  With  Facts  in 
Transcript.  The  printed  abstract  should  correspond  with  the  fact  of  the 
transcript,     Under  the  rule  (former  Rule  17,  Dak.  Ter.,  the  same  in  sub- 


RULE    12,    S.    D.,    RULE    16,    N.    D.  479 

stance  as  present  Rule  12)  the  printed  abstracts  must  be  made  reliable  by 
conforming  to  the  facts  of  the  record.  St.  Croix  Lumber  Co«v.  Penning- 
ton, 2  Dak.  467  (480),  11  N.  W.  497  (503).  Evidence  Must  Be  in  Bill— Re- 
view of  Order — Stenographer's  Notes  Not  Sufficient— Stipulation.  The 
evidence  will  not  be  considered  on  an  appeal  from  a  judgment  unless  em- 
bodied in  a  bill  of  exceptions  or  statement,  and  this  applies  to  the  review  of 
an  order  designated  in  the  notice  of  appeal  for  review.  Stenographer's  or 
referee's  notes  of  the  evidence,  when  so  stipulated  by  the  parties,  cannot 
take  the  place  of  a  bill  of  exceptions  or  statement  settled  by  the  judge, 
which  must  be  returned  to  this  court  as  part  of  the  judgment  roll.  Mer- 
chants' Nat'l  Bank  v.  McKinney S.  D ,  60  N.  W.  162.     Evidence 

Not  in  Bill,  Insufficiency  of  Not  Assigned  —  Presumption.  When  the 
evidence  upon  which  a  referee  bases  his  findings  of  fact  is  not  preserved  in 
a  bill  of  exceptions,  and  the  insufficiency  of  the  evidence  to  sustain  such 
findings  is  not  assigned  as  error,  it  will  be  presumed  on  appeal  that  the 
findings  accord  with  and  are  fully  sustained  by  the  evidence.  Adams  & 
Westlake  Co.  v.  Deyette  et  al,  5  S.  D.  418,  59  N.  W.  214;  Barnard  &  Leas 
Mfg.  Co.  V,  Galloway  et  al,  5  S.  D.  205,  58  N.  W.  565;  Pierce  v.  Manning,  2 
S.  D.  517,  51  N.  W.  332;  Hawkins  v.  Hubbard,  2  S.  D.  631,  51  N.  W.  774. 
No  Reversal  on  Emasculated  Abstract  —  Presumption  in  Absence  of 
Pleading.  The  abstract  of  appellant  discloses  the  complaint,  the  affidavit,  and 
the  order  appointing  the  receiver  in  question,  and  we  are  asked  to  set  aside 
the  order  because  the  complaint  and  affidavit  do  not  show  sufficient  grounds 
for  making  it;  but  reference  to  the  record  that  has  been  sent  up  discloses 
the  fact  that  in  the  Cbrtificate  of  the  judge  who  made  such  order,  and  which 
is  appended  to  such  record,  it  appears  that  the  order  was  made  upon  the 
complaint,  affidavit,  and  the  answer  of  the  defendant.  This  answer  does 
not  appear  in  the  abstract.  Under  well  established  principles,  we  cannot 
presume  error,  nor  can  we  reverse  upon  an  emasculated  abstract.  We  must 
presume  that,  if  the  showing  made  by  the  complaint  and  affidavit  be  insuffi- 
cient, it  was  supplemented  either  by  a  statement  of  sufficient  facts,  or  by 
consent  contained  in  the  answer.  Hoffman  v.  Bank  of  Minot,  4  N.  D.  473, 
61  N.  W.  1031.  Instrument  in  Evidence,  Formal  Parts  Omitted.  The  in- 
strument offered  in  evidence  to  which  objection  is  made,  or  so  much  thereof 
or  such  statement  of  its  contents  and  character  as  may  be  necessary  to  pre- 
sent the  point  of  the  objection,  must  be  inserted  in  the  abstract;  and  when 
not  so  inserted  the  objection  will  be  disregarded.  Formal  and  unnecessary 
parts  of  the  instrument  should  be  omitted.  Lewis  et  al  v.  St.  P.,  M.  &  M. 
Ry.  Co.,  5  S.  D.  148,  58  N.  W.  580.  Errors  Based  on  Questions  and  An- 
swers, Abstract  Giving  Narrative  Form  —  Not  Considered.  Errors  as- 
signed, based  upon  objections  to  interrogations  and  answers  referred  to 
in  the  assignment  by  number  only  cannot  be  considered  on  an  abstract  in 
which  the  questiops  and  finpwers,   with  tjieir  numbers,  are  pot  preserved, 


480  RULES  OF  SUPREME  COURT. 

but  are  condensed  and  presented  in  narrative  form.  Whatever  matters  it 
is  necessjiry  for  this  court  to  know  and  consider  must  be  presented  by  the 
abstract.     Bern,  et  al  v.  Bern,  et  al,  4  S.  D.  138,  55  N.  W.  1102. 

Indefinite  and  Unavailing  Exception.  An  exception  "to  that  por- 
tion of  the  court's  charge  commencing  with  the  words  (specifying  the 
words),  and  from  there  to  the  end,"  is  not  an  available  exception,  where  the 
jx)rtion  of  the  charge  so  defined  contains  two  or  more  distinct  and  indepen- 
dent propositions.    Calkins  v.  Seabury -Calkins  Consol.  Min.  Co., S.  D , 

68  N.  W.  797;  Banbury  v.  Sherin,  4  S.  D.  88, 5,5  N.  W.  723;  Bouck  v.  Enos,  61 
Wis.  660,  21  N.  W.  825.  Exception  to  Instructions,  When  Too  Indefi- 
nite. An  exception  as  follows:  "We  except  to  each  of  the  instructions 
given  by  the  court  to  the  jury,  respectively,"  is  not  such  an  exception  as 
entitles  appellant  to  a  review  of  the  general  instructions  given  by  the  court 
to  the  jury.  Banbury  v.  Sherin,  4  S.  D.  88,  55  N.  W.  723;  Kennedy  v. 
Falde,  4  Dak.  319,  29  N.  W.  667;  Galloway  v.  McLean,  2  Dak.  372,  9  N. 
W.  98. 

Appeal  firing's  Judgment  Roll  for  Review — Court  can  Examine 
Nothing  Else.  An  appeal  from  a  judgment  of  the  lower  court  brings  be- 
fore the  supreme  court  the  judgment  roll  proper  for  review,  and  court  can 
look  at  nothing  not  contained  in  and  made  part  of  judgment  roll.  The  ap- 
pellate court  is  strictly  prohibited  from  examining  into  or  listening  to  any 
matters  or  things  dehors  the  record.  Fargo  v.  Palmer etal  4  Dak.  232,  29  N. 
W.  463;  Gress  v.  Evans,  1  Dak.  387,  46  N.  W.  1132;  In  Re  Opening  Gold 
Street,  Deadwood  v.  Newton,  2  Dak.  151,  3  N.  W.  329;  French  v.  Lancaster, 
2  Dak.  276,  9  N.  W.  716;  Golden  Terra  Min.  Co.  v.  Smith,  2  Dak.  377,  11  N. 
W.  98;  St.  Croix  Lnmber  Co.  v.  Pennington,  2  Dak.  467,  UN.  W.497;  Tol- 
man  v.  New  Mexico  &  Dak.  Mica  Co.,  4  Dak.  4,  22  N.  W.  505.  Appeal  From 
Judgment  on  Pleadings— No  Bill — Review.  Where  no  bill  of  exceptions 
is  settled  and  filed  on  appeal  from  a  judgment  entered  on  the  pleadings,  ev- 
idence, report  of  a  referee,  and  proceedings  thereon,  the  appeal  will  not  be 
dismissed;  but  only  errors  affirmatively  appearing  on  the  judgment  roll  will 
be  reviewed.  Merchants'  Nat.  Bank  v.  McKinney  et  al,  1  S.  D.  78,  45  N. 
W.  203. 

Necessary  Papers  in  Respondent's  Attorney's  Hands— Estoppel 
to  Object  to  Abstract.  Where  after  diligent  search  many  papers  necessary 
to  appear  in  the  abstract  could  not  be  found  until  too  late,  and  were  then 
found  in  the  office  of  respondent's  attorney,  and  copies  were  not  procurable, 
respondent  cannot  object  to  an  appeal  on  the  grounds  that  such  brief  and 
abstract  were  not  served  or  certified  and  docketed  in  time.  Merchants' 
Nat.  Bank  v.  McKinney  et  al,  1  S.  D.  78,  45  N.  W.  203.  Delay  in  Serving 
Abstract  and  Filing  Transcript — Dismissal  of  Appeal.  If  no  abstract  or 
brief  was  served  for  nearly  a  year  after  appeal  taken,  and  the  original  papers 
or  copies  were  not  filed  in  the  supreme  court  for  more  than  a  year  after  ap- 


RULE   12,   S.    D.,    RULE    16,    N.    D.  481 

peal,  amd  no  sufficient  explanation  is  offered  for  the  delay,  appeal  will  be  dis- 
missed. Smith  V.  Chicago,  M.  &  St.  P.  R'y  Co.,' 4  S.  D.  30,  54  N.  W.  931; 
Bank  v.  Crouch,  3  S.  D.  410,  58  N.  W.  862;  Himebaugh  v.  Same,  Id. 

When  Abstract  Deemed  to  Claim  Bill  Settled  and  New  Trial  Moved 
For— Striking  Abstract.  Where  appellant's  abstract  contains  matter,  and 
upon  it  questions  for  review,  which  matter  could  only  be  presented  by  a  bill 
of  exceptions  or  statement  and  after  a  motion  for  new  trial  in  the  court  be- 
low, and  respondent  files  no  additional  abstract  denying  that  a  bill  of  excep- 
tions or  statement  was  settled  or  motion  for  new  trial  made,  the  abstract 
will  be  considered  by  the  supreme  court  as  claiming  that  a  bill  or  statement 
was  settled,  and  motion  for  new  trial  made;  and  in  such  case  a  motion  to 
strike  out  such  portions  of  the  abstract  as  purport  to  show  proceedings  of 
the  trial,  on  the  ground  that  the  abstract  does  not  specifically  state  that  a 
statement  or  bill  was  settled  and  motion  for  new  trial  made,  will  be  denied. 
Jones  Lumber  &  Mercantile  Co.  v.  Paris,  5  S.  D.  848,  58  N.  W.  813; 
Thompson  v.  Silvers,  59  Iowa  670,  13  N.  W.  854.  Authenticated  Record, 
When  Abstract  Deemed  to  Claim.  Where  an  abstract  sets  out  such  mat- 
ter, not  jurisdictional,  as  could  only  be  gathered  from  a  duly  authenticated 
record,  it  will  be  construed  as  claiming  that  the  record  was  properly 
authenticated,  and  in  the  absence  of  any  denial  such  facts  will  be  consid- 
ered by  this  court  as  admitted.     Searles  v.  Christensen, S.  D ,60 

N.  W.  29;  Mercantile  Co.  v.  Paris,  5  S.  D.  348,  58  N.  W.  813.  Record  Not 
Showing  Alleged  Ruling  Made,  TJnavailing.  An  assignment  alleging 
error  in  the  ruling  of  the  trial  court  is  unavailable  here,  where  the  record 
does  not  show  that  such  ruling  was  made,  or  the  facts  upon  which  it  is  as- 
sumed in  argument  to  have   been   made.     Johnson  v.  Gilmore, S.  D. 

,60  N.  W.  1070.     Errors  Not  Specified  in  Bill,  Disregarded.     Errors 

not  specified  in  bill  of  exceptions,  where  motion  for  a  new  trial  is  made  on  a 
bill,  must  be  disregarded  by  the  trial  court  and  on  appeal.  lUstad  v.  An- 
derson, 2  N.  D.  167,  49  N.  W,  659.  Presumption  of  Regularity  of  Pro- 
ceedings, When  Cannot  Prevail — Affirmative  Showing.  The  presump- 
tion in  favor  of  the  regularity  and  validity  of  the  proceedings  and  judgment 
of  the  trial  court,  and  that  the  questions  decided  were  duly  presented,  can- 
not prevail  as  to  any  question  which  the  abstract  affirmatively  shows  was 
not  presented.     Harkins  v.  Cooley  etal,  5  S.  D.  227,  58  N.  W.  560. 

Trial  De  Novo  on  Appeal,  all  Evidence  Preserved — Treatment  of 
Admitted  or  Omitted  Evidence — ExMbits.  In  cases  of  actions  tried  below 
under  chap.  82,  laws  1893,  and  which  can  only  be  tried  in  this  court  de  novo, 
all  evidence  olTered  in  the  trial  court  should  be  preserved  in  the  record,  to- 
gether with  the  objections  thereto,  if  any;  and  when  the  case  reaches  this 
court  such  objections  will  be  passed  upon  as  original  questions,  and  evi- 
dence improperly  excluded  below  under  objections  will  be  considered  here, 
31— T  P 


482  RULES  OF  SUPREME  COURT. 

and  evidence  improperly  admittod  below  over  objections  will  be  excluded 
here.  Respondent  cannot  complain  that  all  the  evidence  is  not  here  when 
the  omitted  evidence  was  excluded  on  his  objection,  nor  can  appellant  com- 
plain of  such  omission  when  it  is  clear  from  the  record,  beyond  controversy, 

that  such  evidence  was  proY)erly  excluded.     Taylor  v.  Taylor S.  D , 

63  N.  W.  893.  Lumber  Co.  v.  Mitchell,  61  la.  132,  16  N.  W.  52;  Taylor  v. 
Kier,  54  la,  645,  7  N.  W.  120;  Blough  v.  Van  Hoorebeke,  48  la.  40.  All  ex- 
hibits offered  in  the  court  below,  whether  received  or  not,  should  be  identi- 
fied in  this  court  by  the  certificate  of  the  trial  judge,  as  admitted  exhibits 
are  identified  in  other  cases.  Taylcr  v.  Taylor,  supra.  Certificate  Show- 
ing Substance  of  Evidence,  "When  Sufficient.  A  certificate  of  the  judge 
that  the  record  contains,  in  substance,  all  evidence  given  upon  the  trial,  is 
suflScient  to  authorize  the  court  to  review  the  evidence.  Territory  v.  Stone, 
2  Dak.  155,  4  N.  W.  697;  People  v.  Yorke,  9  Cal.  421;  People  v.  Getty,  49 
Cal.  581;  People  v.  Fisher,  51  Cal.  321.  Assignments  Without  Specifica- 
tions as  to  Evidence — When  Good.  It  seenis  that  asLsignments  in  a  mo- 
tion for  a  new  trial  in  a  criminal  case,  that  "the  verdict  is  contrary  to  the 
evidence,"  and,  "the  verdict  is  not  sustained  by  th6  evidence,"  without  spec- 
ifying in  what  particulars  the  evidence  is  insufficient,  are  sufficiently  defin- 
ite to  be  considered.  Territory  v.  Stone,  2  Dak.  155,  4  N.  W.  697;  People 
V.  Magallones,  15  Cal.  428;  People  v.  Jones,  31  Cal.  566. 

(b).     Conflicting  Abstracts— Evidence  of  the  Becord. 

Evidence  of  Service  of  Appeal  Notice — Confl^icting  Abstracts— Record 
Examined.  Where  appellant's  abstract  states  that  notice  of  appeal  is  prop- 
erly served  and  respondent's  abstract  denies  it,  this  court  will  go  to  the  or- 
iginal records  to  settle  the  dispute,  upon  that  question  as  well  as  upon  the 
question  whether  a  bill  of  exceptions  or  statement  was  settled.  Kehoe  v. 
Hanson  et  al, S.  D ,  60  N.  W.  31.  Abstract  Denied— When  State- 
ment in  Amended  Abstract  Taken  as  True — Striking  From  Abstract. 
Where  appellant's  abstract  sets  out  what  purports  to  be  the  evidence  used 
on  the  trial  below,  and  respondent  serves  and  files  an  amended  abstract  de- 
nying the  correctness  of  appellant's  abstract,  and  alleging  that  no  bill  of 
exceptions  or  statement  was  ever  settled,  and  that  the  purported  evidence  is 
no  part  of  the  record,  which  amended  abstract  is  not  denied,  its  statement 
will  be  taken  as  true;  and  the  purported  evidence  will,  upon  motion,  be 
stricken  from  the  abstract;  and,  this  being  done,  only  such  assignments  of 
error  as  can  be  examined  on  the  remaining  record  will  be  considered. 
Hodges  et  al  v.  Bierlien,  4  S.  D.  219,  56  N.  W.  748;  Lucas  v,  Jones,  44  Iowa, 
298;  Hart  v.  Jackson,  57  Iowa,  75,  10  N.  W.  295;  Kent  v.  Coquillard,  67  la., 
600,  25  N.  W.  749;  Zimmerman  v.  Insurance  Co.,  77  Iowa,  350,  42  N. 
W.  318;  Brooke  v.  Railway  Company,  81  Iowa,  504,  47  N.  W.  74. 
Abstract  Belied  on — Original  Papers  Not  Examined,  Except  on  Disa- 
greement.   The  rules  of  the  sQpreme  court  contemplate  a  carefully  pre- 


RULE   12,    S.    D.,    RULE   16,    N.    D.  488 

pared  abstract,  which  shall  take  the  place  of  the  original  record,  for  the 
purpose  of  the  hearing  and  decision  of  the  case;  and  the  case  will  be  heard 
and  decided  upon  the  abstract,  and  the  original  papers  will  not  be  exam- 
ined, except  to  settle  a  disagreement  between  abstracts.  Noyes  et  al  v. 
Lane,  2  S.  D.  25,  48N.W.  322;  overruling  same  case  in  1  S.  D.  125,  45  N.  W.  327. 
See  White  V.  Savery,  49  Iowa,  197;  Farmer  v.  Sasseen,  63  Iowa,  110,  18  N.W. 
714;  Eldredge  v.  Bell,  64  Iowa,  129,  19  N.  W.  879;  Mielenz  v.  Quasdorf,  68 
Iowa,  627,  28  N.  W.  41;  Bailey  v.  Association,  71  Iowa,  690,  27  N.  W.  770. 
Dispute  as  to  Evidence — When  Additional  Abstract  Proper.  Where 
appellant  includes  in  his  absti*act  evidence  which  respondent  claims  was 
not  before  the  court  below,  and  does  not  constitute  a  part  of  the  bill  of  ex- 
ceptions, it  is  the  proper  practice  to  bring  the  same  to  the  attention  of  this 

court  by  an  additional  abstract.     Tollerton  &  Stetson  Co.  v.  Casperson, 

S.  D ,  63  N.   W.  908.     Entry  of  Judgment,    Conflicting  Abstracts  as 

to.  Appellant's  abstract  did  not  expressly  state  that  the  judgment  appeal- 
ed from  had  been  entered  or  perfected  by  filing  judgment  roll  prior  to  tak- 
ing appeal.  Respondents  additional  abstract  stated  that  no  judgment  had  then 
been  entered  or  judgment  roll  filed.  The  clerk's  endorsement  on  the  judg- 
ment itself  showed  its  entry  in  judgment  book  on  a  date  nearly  four  months 
after  appeal  taken.  The  clerk's  certificate  showed  that  at  its  date,  five 
months  subsequent  to  appeal,  no  judgment  roll  had  been  filed  in  his  office. 

1/eZd,  the  appeal  should  be  disruissed.     Greenly   v.    Hopkins, S.  D , 

64  N.  W.  1128.  When  Amended  Abstract  Taken  as  True— Affidavit — 
Striking  Out  Evidence — lo-wa  Practice.  Where  respondent  files  an 
amended  abstract  denying  the  correctness  of  appellant's  abstract  as  to  cer- 
tain evidence,  and  alleging  that  no  bill  of  exceptions  or  statement  was  ever 
settled,  which  amended  abstract  is  not  in  any  manner  denied,  its  statement 
will  be  taken  as  true,  and  upon  such  abstracts  and  an  affirmative  uncontro- 
verted  affidavit  that  no  bill  of  exceptions  or  statement  has  been  settled,  the 
purported  evidence  will  upon  motion  be  stricken  from  the  abstract.  Hodges 
et  al  v.  Bierlein,  4  S.  D.  219,  56  N.  W.  748.  Such  practice  is  well  settled  by 
the  Iowa  courts,  whence  our  rules  as  to  the  office  and  effect  of  abstracts  are 
taken.  Id.  Lucas  v.  Jones,  44  la.  298;  Hart  v.  Jackson,  57  la.  75,  10  N.  W. 
295;  Kent  v.  Coquillard,  67  la.  500,  25  N.  W.  749;  Zimmerman  v.  Ins.  Co.,  77 
la.  350,  42  N.  W.  318;  Brooke  v.  Ry.  Co.,  81  la.  504,  47  N.  W.  74.  Ab- 
stract Uncontradicted,  True— Evidence  of  Court  Order,  Appellant's  ab- 
stract, if  uncontradicted  will  be  treated  as  true,  and  where  it  does  not  set  out 
the  judgment  in  form,  but  recites  that  the  case  was  "submitted  to  the 
court,"  and  that,  "the  court  rendered  the  following  judgment  and  order," 
and  there  is  nothing  in  the  abstract  inconsistent  with  such  recitals,  the  or- 
der and  judgment  referred  to  will  be  deemed  to  have  been  made  by  the 
court  and  not  by  the  judge.  Cleveland  v.  Evans  et  al,  5  S.  D.  53,  58  N.  W. 
8;  Noyes  v.  Lane,  2  S.  D.  55,  48  N.  W.  322;  Irrigation  Co.  v.  Schone  2  S. 
D.  344,  50  N.  W.  356. 


484  RULES  OF  SUPREME  COURT. 

(c. )    Motion  for  New  Trial,  What  Reviewed  Without. 

Evidence  Not  Reviewed  Unless  Error  Assigned — Motion  for  New 
Trial — Statute,  Rules,  Construed.  Where  an  action  is  tried  to  the  court, 
-and  a  motion  for  new  trial  on  the  ground  of  insufficiency  of  the  evidence  to 
.sustain  the  findings  is  overruled,  an  appeal  from  the  judgment  does  not  pre- 
sent the  evidence  for  review  in  the  supreme  court  unless  error  is  assigned 
in  overruling  the  motion  for  new  trial.  Pierce  et  al  v.  Manning,  Sheriff,  1 
Dak.  306,  51  N.  W.  332.  In  this  case  the  court  say:  "Our  statute  does 
not  specifically  provide  for  an  assignment  of  errors  on  appeal  to  the  supreme 
court  in  civil  cases,  but  the  rules  of  court  do,  and  there  would  be  little  dis- 
agreement as  to  its  necessity  or  function";  citing  Brewing  Co.  v.  Mielenz,  5 
Dak.  136,  37  N.  W.  728;  Wood  v.  Whitton,  66  Iowa  295,  19  N.  W.  907,  and 
.23  N.  W.  675;  Steele  v.  Railway  Co.,  (111.  Sup.)  7  N.  E.  483;  Miller 
v.  Wade,  87  Cal.  410,  25  Pac.  487,  Wallace  v.  Robeson  (N.  C),  6  S. 
E.  650;  Oil  Co.  v.  Perry  (Ala.),  4  So.  635;  Clark  v.  Schnur,  40  Kas.  72,  19 
Pac.  327;  Reagan  v.  Copeland  (Tex.  Sup.),  14  S.  W.  1031;  Woodal  v.  Graeter, 
51  Ind.  539.  The  court  in  that  case  further  say:  "But  it  may  be  said  that 
by  section  5237,  Comp.  Laws,  'upon  an  appeal  from  a  judgment,  *  *  * 
the  supreme  court  may  f  eview  any  intermediate  order  or  determination  of 
the  court  below  which  involves  the  merits  and  necessarily  affects  the  judg- 
.  ment  appearing  upon  the  record  transmitted,'  etc.;  but  'may  review'  is  not 
to  be  held  to  mean  'must  review,'  without  regard  to  compliance  with  other 
repuirements  of  law  and  practice."  See,  there  citefl,  Clark  v.  Schnur,  40 
Kas.  72,  19  Pac.  327;  Struthers  v.  Fuller,  45  Kas.  735,  26  Pac.  471;  Carson  v. 
Funk,  27  Kas.  524;  Lingerman  v.  Nave,  31  Ind.  222;  Kirch  v.  Davies,  55 
Wis.  287,  11  N.  W.  698;  Ingraham  v.  Gildermester,  2  Cal.  483;  Nesbit  v. 
Hines,  17  Kas.  316;  Railroad  Co.  v.  McCartney,  1  Neb.  398;  Kent  v.  Law- 
son,  12  Ind.  678;  Ford  v.  Wilson  (Ga.),  11  S.  E.  559;  Westfall  v.  Dungan,  14 
Ohio  St.  276;  Smith  v.  Gillett,  50  111.  299;  Polk  v.  State,  4  Mo.  544;  Smith  v. 
HoUis,  46  Ark.  21;  Whitmore  v.  Shiverick,  3  Nev.  288;  Byrne  v.  Railroad 
Co.,  29  Minn.  200,  12  N.  W.  698.  Sufficiency  of  Evidence— Motion  for  New 
Trial  Necessary  for  Review  of — Abstract  Must  Show.  The  sufficiency  of 
the  evidence  to  justify  a  verdict  or  findings,  cannot  be  inquired  into  on  ap- 
peal, unless  a  motion  for  new  trial  was  made  below,  and  that  question  was 
raised  on  such  motion.  Evenson  v.  Webster,  3  S.  D.  382,  53  N.  W.  747. 
When  it  does  not  affirmatively  appear  from  the  abstract  that  a  motion  for 
new  trial  was  made  below,  the  supreme  court  will  assume  that  no  such  mo- 
tion was  made.  Id.  Motion  for  New  Trial  Not  Jurisdictional — Evidence 
Not  Reviewed,  Errors  of  Law  Will  Be.  A  motion  for  new  trial  is  not  a 
prerequisite  to  an  appeal  nor  jurisdictional;  but  where  there  is  no  such  mo- 
tion the  supreme  court  will  not  review  the  question  of  sufficiency  of  the  evi- 
dence to  support  the  verdict.  Jones  Lumber  &  Mercantile  Co.  v.  Faris,  5 
S.  D.  348,68  N.  W.  813;  Pierce  v.  Manning,  1  Dak.  306,  51  N.  W.  332;  Even- 


RULE    13,    S.   D.,    RULE    17,    N.    D.  485 

sen  V.  Webster,  3  S.  D.  382,  53  N.  W.  747;  but  errors  of  law  occurring  at 
the  trial  and  duly  excepted  to,  may  be  reviewed,  on  appeal  from  a  judg- 
ment, though  no  motion  for  new  trial  was  made  in  the  trial  court.  Jones 
Lumber  &  Mercantile  Co.  v.  Faris,  supra;  and  see,  to  same  point,  Brown  v. 
Tolles,  7  Cal.  398:  Carpentier  v.  Williamson,  25  Cal.  167;  Caldwell  v.  Parks, 
47  Cal.  640;  Hayne's  New  Tr.  &  Appeal,  sec.  100,  and  cases  there  cited; 
Earp.  V.  Railroad  Co.,  12  Ohio  St.  621.  The  Indiana  and  Nebraska  decis- 
ions are  contrary  (see  Jones  Lumber  &  Mercantile  Co.  v.  Faris,  supra.) 

RULE  13,  S.  D.,  RULE  17,  N.  D. 

RESPONDENT'S  ADDITIONAL  ABSTRACT,  SERVICE  OF,  HOW 
AND  WHEN  MADE— ORDER  FOR  SUPPLEMENTAL— TERMS.  If  the 
respondent  shall  deem  the  abstract  of  the  appellant  imperfect 
or  unfair,  he  may  within  fifteen  (15)  days  after  receiving  the 
same,  deliver  to  the  counsel  of  the  adverse  party,  one  printed 
copy,  and  deliver  or  mail  to  the  clerk  of  this  court  at  least  ten 
(10)  printed  copies  of  such  further  or  additional  abstract  as  he 
shall  deem  necessary  to  a  full  understanding  of  the  questions 
presented  to  this  court  for  decision. 

•  Either  party,  however,  upon  notice,  or  order  to  show 
cause,  and  upon  satisfactory  showing  that  through  mistake  or 
excusable  neglect,  he  has  made  or  consented  to  an  abstract 
which  is  incorrect  or  imperfect,  in  any  material  respect,  desig- 
nated in  the  notice,  may  have  an  order  of  court  allowing  him 
to  file  a  supplemental  abstract  upon  such  terms  as  to  the  court 
shall  seem  just. 

[Rule  17,  N.  D.,  is  the  same,  except  that  in  lieu  of  the  words  "at  least 
ten,"  the  word  "nine"  is  used;  and  in  lieu  of  the  words  "additional  ab- 
stract," the  words  "additional  abstracts"  are  used;  and  the  second  para- 
graph, commencing  with  "Either,"  is  omitted.] 

Consult,  as  to  appellant's  abstract,  Rule  12,  S.  D.,  Rule  16,  N.  D.,  su- 
pra, and  decisions  thereunder. 

(a).     Additional  Abstract,  When  Proper— Other  Remedies. 

Only  Justified  When  Appellant's  Abstract  Unfair — Additional 
Matter — Costs.  Onlj'  when  respondent  is  justified  in  deeming  appellant's 
abstract  imperfect  or  unfair,  may  he  serve  an  additional  abstract.  It  is  only 
allowable  for  the  purpose  of  setting  out  other  or  additional  matter  not  found 
in  appellant's  abstract,  and  necessary  to  a  full  understanding,  of  the  ques- 
tions to  be  decided.  Except  in  such  cases,  no  costs  for  printing  an  additional 
abstract  will  be  allowed.     Dalbkermeyer  v.   Scholtes  et  al,   3  S.   D.   183, 


486  tlULES  OF  SUPREME  COURT. 

52  N.  W.  871.  Evidence  in  Abstract  not  in  Record,  Additional  Ab- 
stract Proper.  Where  appellant  includes  in  his  abstract  evidence  which 
res{X)ndent  claims  was  not  before  the  court  below  and  does  not  constitute  a 
part  of  the  bill  of  exceptions,  it  is  proper  practice  to  bring  the  same  to  the 
attention  of  this  court  by  an  additional  abstract.  ToUerton  &  Stetson  Co. 
V.  Casperson, S.  D ,  63  N.  W.  908.  Informal  Undertaking,  Addi- 
tional Abstract  Proper.  When  respondent  claims  that  the  affidavit  to 
the  undertaking  on  appeal  is  insufficient  in  form,  it  is  proper  practice  to 
bring  the  same  before  this  court  by  an  additional  abstract.  ToUerton  & 
Stetson  Co.  v.  Casperson,  supra.  Object  of  Additional  Abstract.  The  ob- 
ject of  an  additional  abstract  on  the  part  of  respondent  is  to  bring  before 
this  court  some  matter  of  record  not  contained  in  appellant's  abstract,  or  to 
show  that  some  matter  that  should  appear  in  the  record,  necessary  to  per- 
fect an  appeal,  has  been  omitted,  or  to  show  that  the  matter  contained  in 
appellant's  abstract  has  not  been  correctly  abstracted  from  the  record.  Fol- 
ey-Wads  worth  Imp.  Co.  V.  Porteous,  S.  D ,  63  N.  W.  155.  Mis- 
take or  Neglect,  Mast  be  Very  Excaptional.  The  excusing  circumstan- 
ces which,  under  rule  13,  justify  respondent  in  asking  for  permission  to  file 
an  additional  abstract,  becausa  of  mistake  or  excusable  neglect,  after  a  case 
has  been  argued,  submitted,  and  decided,  should  be  very  exceptional,  or  the 
case  of  unusual  importance;  and  this  is  not  such  a  case.  Ay  res,  Weather- 
wax  &  Reid  Co.  v.  Sundback,  sheriflf,  5  S.  D.  362,  58  N.  W.  929.  Supple- 
mental Abstract  to  Show  Publication  Notice,  Not  Allowed,  When. 
Leave  to  file  supplemental  abstract  for  sole  purpose  of  presenting  a  cor- 
rected printer's  affidavit  of  publication,  not  before  the  trial  court,  but  filed 
therein,  nunc  proc  tunc,  long  after  an  appeal  had  been  taken,  will  not  be  al- 
lowed. Iowa  State  Savings  Bank  v.  Jacobson,  . . . .  S.  D.  . .,  66  N.  W.  453; 
Ladd  V.  Couzins,  35  Mo.  514;  Clelland  v.  People,  4  Colo.  244;  Kirby  v.  Super- 
ior Court,  68  Cal.  604,  10  Pac.  119.  Reargxunent  on  New  Abstract,  When 
Not  Permitted.  Where  a  case  is  submitted  by  both  sides,  and  decided, 
upon  an  abstract  to  which  no  objection  is  made,  an  application  to  reargue 
upon  a  new  abstract  to  be  presented  will  be  denied,  unless  the  circumstan- 
ces are  very  exceptional.     Harrison    v.  Chi.  Mil.  &  St.  P.  R.  Co., S.  D. 

,  62  N.  W.   376.     Petition  for  Kehearing,  on  Additional  Abstract — 

Evidence  not  in  Bill.     In  Merchants'  Nat.  Bank.    v.    McKinney  et  al,   

S.  D ,  60  N.  W.  162,  plaintilT   petitioned   for  a  rehearing  in  this  court, 

basing  the  application  upon  what  it  denominated  "an  additional  abstract," 
containing  what  purports  to  be  an  abstract  of  the  evidence  given  before  the 
referee  upon  issues  as  to  which  it  claims  the  referee  made  no  findings. 
Such  evidence  was  not  contained  in  any  bill  of  exceptions  or  statement  of 
case,  either  upon  the  original,  or  upon  this  second  appeal.  The  applica- 
tion was  denied  and  the  court  refused  to  consider  the  alleged  evidence. 

Conflict  in  Abstracts— Bill  Treated  as  Statement,  and  Disregarded — 
Not  Cured  by  Assigning  Error.  In  Billingsley  et  al  v.  Hiles  etal, S.  D. 


RULE    13,    S.    D.,    RULE    17,    N,    D.  487 

,  61  N.  W.  687,  in  considering  the  state  of  the  record  relative  to  grounds 

of  motion  for  a  new  trial,  and  specification  of  errors,  appellant's  abstract 
not  showing  any  specifications,  and  respondent's  additional  abstract  stating 
affirmatively  that  there  was  none,  the  court  treated  appellant's  bill  of  ex- 
ceptions as  a  statement,  and,  its  condition  being  as  above  stated,  field,  that 
it  was  a  proper  case  for  application  of  the  language  of  sec.  5090,  Comp. 
Laws,  to-wit:  "The  statement  shall  be  disregarded  on  the  hearing  of  the 
motion."  Held,  further,  that  these  defects  are  not  cured  by  assignments  of 
error  in  this  court.  Consult  also,  upon  the  question  of  conflicting  ab- 
stracts.  Greenly   v.    Hopkins,    S,  D ,  64  N.    W.  1128,  cited  under 

preceding  rule.     Consult  also.  Bell   v.    Thomas, S.    D ,63  N.    W. 

907,  as  to  when  appellant's  abstract  is  taken  to  be  true  as  showing  appeal 
taken;    cited   under    preceding- rule.      Conflict  as   to  Judgment  Entry — 

Amendment  Allowed.     In  McKittrick  v.  Pardee, S.  D ,  65  N.  W. 

23,  motion  to  dismiss  appeal  was  made  on  the  ground  that  it  did  not  appear 
from  the  abstract  that  any  judgment  had  been  entered  below.  The  ab- 
stract did  not  in  terms  state  that  judgment  was  entered,  nor  did  respond- 
ent's abstract  assert  the  contrary,  but  he  relied  upon  the  omission  in  appel- 
lant's abstract.  Appellant  asked  leave  to  amend  in  that  particular,  which 
was  granted;  and  the  court  assumed,  on  the  merits,  that  the  amendment 
had  been  made  accordingly.  Evidence  Not  in  Record,  Motion  Proper, 
Not  Additional  Abstract.  When  an  appeal  is  taken  from  an  order,  •cj.nd  re- 
spondent claims  that  evidence  was  received  on  the  hearing  in  the  court  be 
low,  not  contained  in  the  record,  the  proper  practice  is  to  bring  the  fact  of 
such  omission  to  this  court  by  motion,  supported  by  affidavits,  or  the  cer- 
tificate of  the  judge  of  the  court  making  the  order,  or  both,  and  not  by  fil- 
ing an  additional  abstract.     Foley-Wadsworth  Imp.  Co.  v.  Porteous, S. 

D ,63  N.  W.  155.     InsuflS.cient  Record,  Review  Restricted.     Where 

the  record  in  this  court  is  not  sufficiently  full  for  the  examination  of  the 
main  questions  of  error  assigned,  appellant  will  bo  confined  to  such  assign- 
ments of  error  as  may  properly  be  considered  upon  the  record  presented. 
Ellis  V.  Wait,  4  S.  D.  31,  54  N.  W.  925. 

Costs  —  Unnecessary  Additional  Abstract.  Respondent's  abstract 
being  entirely  unnecessary,  no  costs  are  allowed  for  its  printing.  Johnson 
V.  Gilmore S.  D ,  60  N.  W.  1070.  Duplicating  Matter  in  Furth- 
er Abstract  —  Costs  Not  Allowed.  When  a  further  abstract,  filed  under 
Rule  13,  largely  duplicates  matter  contained  in  appellant's  abstract,  re- 
spondent will  only  be  allowed  to  tax  costs  for  printing  such  new  or  addi- 
tional matter  as  was  necessary  to  be  inserted  therein.  Aldrich  et  al  v.  Wil- 
marth,  4  S.  D.  38,  54  N.  W  1051.  Additional  Abstract,  When  Justified— 
Costs  For,  When  Disallowed.  It  is  only  when  respondent  is  justified  in 
deeming  appellant's  abstract  imperfect  or  unfair  that  he  may  serve  addi- 
tjopal  abstract;  and  if  such  additional  abstract  is  clearly  unnecessary  an4 


488  RULES   OF  SUPREME   COURT. 

uncalled  for,  no  costs  for  printing  same  will  be  allowed.  Dalbkermeyer  v. 
Scholtes  et  al,  3  S.  D.  183,  52  N.  W.  871. 

(b).     Presumptions  as  to  Abstract  and  Record. 

All  Necessary  Evidence  Presumed  in  Bill  and  Abstract,  When. 
This  court  will  presume,  in  the  absence  of  a  "further  or  additional  ab- 
stract," that  all  the  evidence  jnaterial  to  the  questions  presented  to  the 
court,  contained  in  the  bill  of  exceptions  or  statement,  is  incorporated  into 
the  abstract,  and  that  the  bill  of  exceptions  or  statement  contiiins  all  the  ev- 
idence the  parties  of  the  trial  court  deemed  material  or  essential  to  a  proper 
determination  of  the  questions  presented  by  the  specifications  of  error. 
Randall  et  al  v.  Burk  Tp.  etc.,  et  al,  4  S.  D.  337,  57  N.  W.  4;  Hidden  v. 
Jordan,  28  Cal.  312.  Presumption  That  all  Essential  Evidence  in  Ab- 
stract—No Additional.  In  absence  of  an  additional  or  amended  abstract, 
it  is  presumed  that  all  evidence  regarded  as  essential  to  a  determination  of 
the  questions  is  contained  in  the  bill  of  exceptions  or  statement  of  the  case 

in  appellant's  abstract.     Davenport  v.  Buchanan  et  al,  S.  D ,61 

N.  W.  47;  Randall  v.  Burk  Tp.,  4  S.  D.  337,  57  N.  W.  4.  Abstract  is  Rec- 
ord Here.  The  printed  abstract  served  by  appellants,  and  consented  to  by 
respondent,  is  the  record  upon  which  a  case  is  heard  in  this  court.  Valley 
City  Land  &  Irrigation  Co.  v.  Schone  et  al,  2  S.  D.  344,.  50  N.  W.  356.  Ap- 
pellant's Uncontradicted  Abstract,  True.  An  appellant's  abstract,  if  un- 
contradicted, will  be  treated  in  this  court  as  true.  Cleveland  v.  Evans  et  al, 
5  S.  D.  53,  58  N.  W.  8.  When  Abstract  Deemed  to  Claim  Certain  Steps 
Taken.  Where  appellant's  abstract  presents  for  review  matter  which  could 
only  be  presented  by  a  bill  of  exceptions  or  statement  and  after  motion  for 
new  trial,  and  respondent  files  no  additional  abstract  denying  that  a  bill  or 
statement  was  settled  or  motion  for  new  trial  made,  appellant's  abstract  will 
be  deemed  as  claiming  that  all  these  steps  were  taken  below;  and  a  motion 
to  strike  out  such  portions  of  it  purporting  to  show  proceedings  on  the  trial, 
and  motion  for  new  trial  made,  will  be  denied.  Jones  Lumber  &  Mercan- 
tile Co.  V.  Far  is,  5  S.  D.  348,  58  N.  W.  813.  When  Amended  Abstract 
Presumed  True.  An  amended  abstract,  denying  the  correctness  of  appel- 
lant's abstract,  which  amended  abstract  was  not  in  any  manner  denied,  will 
be  taken- as  true,  and  matter  contained  in  the  abstract  which  is  the  sub- 
ject of  such  denial  will  be  stricken  therefrom.  Hodges  et  al  v.  Bierlein  4 
S.  D.  219,  56  N.  W.  718;  Lucas  v.  Jones,  44  la.  298;  Hart  v.  Jackson,  57  la. 
75,  10  N.  W.  295;  Kent  v.  Coquillard,  67  la.  500,  25  N.  W.  749;  Zimmerman 
v.  Ins.  Co.,  77  la.  350,  42  N.  W.  .-!18;  Brooke  v.  Ry  Co.,  81  la.  504,  47  N.  W. 
74.  When  Abstract  Deemed  to  Claim  Authenticated  Record.  In  the 
absence  of  any  denial  of  facts  set  out  in  appellant's  abstrac^t,  the  matter  con- 
tained therein  being  such  as  could  only  be  gathered  from  a  duly  authenti- 
cated record,  it  will  be  construed  as  claiming  that  the  record  was  properly 
authenticated,  and  such  claim  will  be  admitted  as  true.     Searles  v.   Chris- 


RULE    13,    S.    D.,    RULE    17,    N.    D.  489 

tensen S.  D ,  60  N.  W.  29;  Mercantile  Co.    v.    Faris,  5  S.  D,  348,  58 

N.  W.  813.  When  Presumed  That  Agreement  for  Reference  Filed. 
Where  it  is  not  stated  in  the  abstract  that  there  was  no  "agreement  of  the 
parties  filed  with  the  clerk  or  entered  in  the  minutes,"  in  connection  with 
giving  notice  of  reference,  this  court  will   presume  such  agreement  was  so 

made  and  filed  or  entered.     Jerauld   Co.  v.   Williams,    S.  D ,  63  N. 

W.  905;  Kent  v.  Insurance  Co.,  2  S.  D.  300,  50  N.  W,  85.  Recital  of  Evi- 
dence in  Additional  Abstract— Findings.  Where  the  additional  abstract 
recites  that  all  the  evidence  was  before  the  court  below  when  the  referee's 
report  was  confirmed  and  judgment  entered,  held,  that  there  was  a  substan- 
tial compliance  wiih  the  statute  requiring  referees  to  report  their  findings 
"together  with  all  the  evidence  taken  by  them,  and  all  exceptions  taken  on 
the  hearing."    Kent  v.  Dak.  F.  &  M.  Ins.  Co.,  2  S.  D.  300,  50  N.  W.  85. 

(c.)    Record,  When  Resorted  to. 

Where  They  Conflict,  Record  Escamined.  Appellant's  abstract  con- 
tained a  certain  statement  of  fact,  which  was  denied  in  respondent's  amend- 
ed abstract;  which  conflicting  statements  made  it  necessary  for  the  court  to 
examine  the  original  bill  of  exceptions.  Way  v.  Johnson  et  al,  5  S.  D.  237, 
58  N.  W.  552.  As  to  Appeal,  and  Whether  Bill  Settled.  Where  ap- 
pellant's abstract  states  that  notice  of  appeal  was  properly  served,  and  re- 
spondent's abstract  denies  it,  the  original  records  will  be  examined  to  settle 
the  dispute,  both  as  to  notice  of  appeal  and  whether  a  bill  of  exceptions  or 

statement  was  settled.     Kehoe  v.  Hanson  et  al, S.  D ,  60  N.  W.  31. 

Only  to  Settle  Dispute.  The  rules  of  this  court  contemplate  a  carefully 
prepared  abstract,  which  shall  take  the  place  of  the  original  record,  for  the 
purpose  of  the  hearing  and  decision  of  the  case.  And  the  original  papers 
will  not  be  examined,  except  to  settle  a  disagreement  between  abs^tracts. 
Noyes  et  al  v.  Lane,  2  S.  D.  55,  48  N.  W.  322.  Abstract  Only  Exam- 
ined, When — Respondent  to  Bring  in  Omitted  Evidence.  This  court, 
in  determining  questions  before  it,  looks  only  to  appellant's  abstract,  and 
the  further  or  additional  abstract  of  respondent  (if  one  is  filed),  unless  there 
is  conflict  between  them  which  requires  examination  of  the  records  to  set- 
tle. A  respondent  claiming  there  is  evidence  or  other  matters  of  record  or 
in  the  bill  of  exceptions  sustaining  the  verdict,  findings,  or  other  decision 
of  the  court,  not  contained  in  appellant's  abstract,  should  bring  such  evi-* 
deuce  or  other  matter  before  this  court  by  further  or  additional  abstract. 
Harrison  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  . . . .  S.  D.  . . .  ,  60  N.  W.  405. 
Affidavit  Not  Considered — Resort  to  Record.  Unless  the  method  pro- 
vided in  Rule  13  of  this  court  is  pursued,  and  a  further  or  additional  ab- 
stract is  provided,  denying  the  correctness  of  appellant's  abstract,  the  lat- 
ter will  be  taken  as  true;  and  an  affidavit  denying  service  of  the  notice  of 
appeal,  submitted  with  a  motion  to  dismiss,  cannot  be  considered,  but  the 
Sli—T  P 


490  RULES  OF  SUPREME  COURT. 

question  must  be  decided  upon  the  the  record  proi)erly  before  us.  Billing- 
hurst  V.  Spink  county  et  al,  5  S.  D.  84,  58  N.  W.  272;  Irrigation  Co.  v. 
Schone,  2  S.  D.  344,  50  N.  W.  356;  Noyes  v.  Lane,  2  S.  D.  55,  48  N.  W.  322; 
Gates  V.  Brooks,  59  la.  510,  6  N.  W.  595,  and  13  N.  W.  640;  Hardy  v.  Moore, 
62  la.  65,  17  N.  W.  200;  Farmer  v.  Sassen,  63  la.  110,  18  N.  W.  714.  Con- 
flict as  to  Appeal  Notice — Record  Examined.    In  McKittrick  v.  Pardee, 

. . . .  S.  D ,  65  N.  W.  23,  the  court  examined   the   original  transcript, 

on  account  of  the  conflicts  in  abstracts,  upon  the  question  whether  the 
proper  service  of  appeal  notice  and  undertaking  had  been  made.  Contro- 
versy as  to  Contents.  Upon  a  controversy  arising  as  to  contents  of  the 
record,  upon  the  respective  abstracts,  record  examined.  Ellis  v.  Wait,  4  S. 
D.  31,  54  N.  W.  925. 

RULE  14,  S.    D.    RULE  18,  N.    D. 

BRIEFS,  WHEN  AND  HOW  SERVED-TO  BE  PRINTED-CON- 
TENTS  OF.  Not  less  than  twenty  (20)  days  before  the  first  day 
of  the  term  at  which  any  civil  cause  may  be  heard,  the  counsel 
for  the  appellant  shall  serve  upon  the  counsel  of  the  adverse 
party  one  copy,  and  shall  deliver  or  mail  to  the  clerk  of  this 
court  at  least  ten  (10)  copies  of  his  brief;  and  not  less  than  five 
(5)  days  before  the  first  day  of  such  term  the  respondent  shall 
serve  upon  the  counsel  of  the  adverse  party  one  copy,  and  de- 
liver or  mail  to  the  clerk  of  this  court  at"  least  ten  (10)  copies 
of  his  brief;  which  briefs  shall  be  printed  and  shall  contain  a 
statement  of  the  points  relied  on,  and  the  authorities  to  be 
cited  in  support  of  the  same. 

[Rule  18,  N.  D.  is  the  same,  except  that  in  lieu  of  the  words  "at  least 
ten,"  the  word  "nine"  is  used.] 

Consult  as  to  briefs  in  criminal  cases,  Rule  15^  S.  D.  Rule  19,  N.  D. 
infra;  and  as  to  service  of  briefs  in  cases  in  which  the  state  is  a  party,  Rule 
16,  S.  D.  Rule  20,  N.  D.  infra. 

As  to  form  and  size  of  briefs,  see  Rule  18,  S.  D.  Rule  22,  N.  D  Post.; 
as  to  distribution  of  briefs,  see  Rule  22,  S.  D.  Rule  26,  N.  D.  Post. 

When  Appeal  Dismissed  for  Want  of  Briefs,  Etc. — Respondent 
Brings  up  Record.  When  the  record  shows  that  an  appeal  was  taken 
more  than  six  months  previous  to  the  opening  of  a  term  of  this  court,  and 
appellant  has  prepared  no  abstract  or  brief,  nor  taken  any  steps  towards 
prosecuting  the  appeal,  nor  shown  any  good  reason  why  he  has  not  done  so, 
the  appeal  will  be  dismissed,  upon  respondent's  bringing  up  the  record  and 
moving  for  that  purpose.  Himebaugh  et  al  v.  Crouch,  3  S.  D.  409,  53  N. 
W.  862;    Citizens'  Bank  of  Pierre  v,  Crouch  et  al,  Id, 


RULE   15,    S.    D.,    RULE    19,    N.  D.  491 

Reproducing  From  Abstract— Quotations  From  Books  and  Re- 
ports, Costs  for  Disallowed.  Although  great  latitude  is  conceded  to 
counsel  in  preparation  of  printed  matter  for  consideration  of  this  court,  a 
recovery  for  unnecessarily  printing  and  reproducing  in  a  brief  portions  of 
the  printed  abstract,  and  lengthy  quotations  from  text-books  and  reported 
cases  conveniently  within  our  reach,  will  not  ordinarily  be  allowed.  Kirby 
V.  Western  Union  Tel.  Co.,....S.  D....,  65  N.  W.  482. 

RULE  15,  S.  D.  RULE  19,  N.  D. 

ABSTRACTS  AND  BRIEFS,  GRIMINALCASES,  PRINTED—EXCEP- 
TION, POOR  DEFENDANT— SERVICE  OF  ABSTRACTS  AND  BRIEFS. 
Rules  12,  13  and  14  are  hereby  made  applicable  as  well  to 
criminal  causes,  with  the  following  exceptions  and  modifica- 
tions: When  because  of  the  poverty  of  the  defendant  counsel 
has  been  assigned  to  his  defense,  and  such  defendant  makes 
and  files  with  the  clerk  of  this  court  an  affidavit  stating  in  sub- 
stance that  he  is  financially  unable  to  pay  the  expense  thereof, 
the  printing  of  such  abstracts  and  briefs  may  be  dispensed 
with,  and  only  six  (6)  copies  of  each  of  the  united  abstracts 
and  briefs  need  be  filed  with  the  clerk.  And  in  all  criminal 
causes  the  abstracts  must  be  served  by  the  plaintiff  in  error 
not  less  than  ten  (10)  days  before  the  return  day  of  the  cita- 
tion; and  the  amended  abstract  not  less  than  three  (3)  days  be- 
fore such  return  day;  and  the  brief  of  the  plaintiff  in  error 
must  be  served  not  less  than  six  (6)  days  before  such  return 
day,  and  the  brief  of  the  defendant  in  error  not  less  than  one 
(1)  day  before  such  return  day. 

[Rule  19,  N.  D.  is  the  same,  except  that  the  references  at  the  begin- 
ning are  to  "Rules  16,  17  and  18",  instead  of  to  "Rules  12,  13  and  14";  and 
in  lieu  of  the  words  "only  six  (6)  copies",  the  words  "only  eight  copies"  are 
used.  ] 

As  to  abstracts  generally,  see  Rules  12,  13,  S.  D.,  Rules  16,  17,  N.  D., 
ante;  as  to  briefs,  see  preceding  rule,  and  decisions  under  said  rules;  as  to 
form  and  size  of  abstracts  and  briefs,  see  Rule  18,  S.  D.,  Rule  22.  N.  D., 
Post. 

As  to  writs  of  and  citations  in  error,  see  Rules  5,  6,  S.  D.  and  N.  D., 
ante\  as  to  service  of  briefs  in  state  cases,  see  Rule  16,  S.  D.,  Rule  80,  N. 
D.,  Post;  as  to  notice  of  argument  in  criminal  cases,  see  Rule  17,  S.  D., 
Rule  21,  N.  D.,  Post. 


492  RULES  OF  SUPREME  COURT. 

RULE  16,  S.  D.,  RULE  20,  N.  D. 

SERVICE  OF  CITATION,  ABSTRACTS,  BRIEFS,  ETC.,  UPON  AT- 
TORNEY GENERAL,  IN  STATE  CASES— CRIMINAL  GASES.  In  all 
cases  in  which  by  law  the  attorney  general  is  required  to  ap- 
pear for  the  state  in  this  court,  and  in  which  the  state  is  a  par- 
ty, respondent  or  defendant  in  error,  the  notice  of  appeal  or 
citation  in  error,  as  the  case  may  be,  and  the  abstracts  and 
briefs  prescribed  by  law  or  the  rules  of  this  court,  shall  be 
served  upon  the  attorney  general;  and  in  criminal  causes  the 
citation  shall  also  be  served  upon  the  state's  attorney  of  the 
proper  county. 

[Rule  20,  N.  D.,  is  the  same,  except  that  in  lieu  of  the  words  ' 'cita- 
tion shall,"  the  words  "citation,  abstracts  and  briefs  shall"  are  used.] 

As  to  writs  of  error  and  return  of  citations,  see  Rules  5  and  6,  ante\  a^ 
to  abstracts  and  briefs  in  criminal  cases,  see  Rule  15,  S.  D.,  Rule  19,  N.  D., 
siipra\  as  to  notice  of  argument  in  criminal  cases,  see  next  rule. 

The  attorney  general  is  required,  by  sec.  95,  Comp.  Laws,  to  "appear 
for  the  state  and  prosecute  and  defend  all  actions  and  proceedings,  civil 
and  criminal,  in  the  supreme  court  in  which  the  state  shall  be  interested  as 
a  party."  By  sec.  96,  Comp.  Laws,  it  is  made  his  duty,  at  the  request  of 
the  governor,  auditor  or  treasurer  "to  prosecute  any  official  bond  or  any 
contract  in  which  the  state  is  interested  upon  a  breach  thereof,  and  to 
prosecute  or  defend  for  the  state  all  actions  civil  or  criminal,  relating  to 
any  matter  connected  with  either  of  their  departments." 

RULE  17,  S.  D.,  RULE  21,  N.  D. 

NOTICE  OF  ARGUMENT  IN  CRIMINAL  CASES— HEARING.  The 
manner  of  bringing  on  the  argument  in  criminal  causes,  and 
the  hearing  thereof,  are  prescribed  in  section  7516,  7517,  7518, 
and  7519,  Compiled  Laws. 

[Rule  21,  N.  D.  is  the  same,  except  that  the  references  therein  are: 
"Sections  489,  490,  491  and  492  of  the  Cod;e  of  Criminal  Procedure,  (Comp, 
Laws,  1887,  sees.  7516,  7517,  7518.)"] 

As  to  sections  7516  to  7519,  Comp.  Laws,  (embraced  in  sees.  8344  to 
8347,  Rev.  Codes,  N.  D.),  see  chap.  36,  pp.  442  to  444,  ante. 

As  to  return  of  and  hearing  upon  citation  in  error,  see  Rule  6,  ante\  as 
to  p>08ition  of  criminal  causes  on  calendar,  see  Rule  8,  S.  D.  Rule  10,  N.  D. 
anie.  Rule  21,  S.  D.  Rule  25  N.  D.  Post. 

RULE  18,  S.  D.  RULE  22,  N.  D. 

FORM  AND  SIZE  OF  ABSTRACTS,  BRIEFS,  ETC.— WHITE  PAPER 
—MARGIN  — FOLIOS— TYPE  — NON-COMPLIANCE,    COSTS   DISAL- 


RULE   20,    S.    D.,    RULE   24,    N.    D,  493 

LOWED.  All  cases  and  points,  and  all  other  papers  furnished 
to  the  court  in  calendar  causes,  shall  be  printed  on  white  pa- 
per with  a  margin  on  top,  bottom  and  outer  edge  of  the  leaf, 
two  inches  wide.  The  printed  page,  exclusive  of  any  marginal 
note  or  reference,  shall  be  seven  inches  long  and  three  and  a 
half  inches  wide.  The  folios,  numbering  from  the  commence- 
ment to  the  end  of  the  case,  shall  be  printed  on  the  outer  mar- 
gin of  the  page.  Small  pica,  solid,  is  the  smallest  letter  and 
most  compact  mode  of  composition  which  is  allowed.  No 
charge  for  printing  the  papers  mentioned  in  this  rule  shall  be 
allowed  as  a  disbursement  in  a  cause,  unless  the  requirements 
of  this  rule  shall  appear  to  have  been  complied  with  in  all  pa- 
pers printed. 

[Rule  22,  N.  D.,  is  the  same,  except  that  the  words  "top,  bottom  and" 
are  omitted.] 

As  to  number  and  service  of  abstracts,  see  Rule  12,  S.  D.,  Rule  16,  N, 
D.,  a7ite;  as  to  respondent's  abstract  and  service  thereof,  see  Rule  13,  S.  U., 
Rule  17,  N.  D.,  ante;  as  to  number  and  service  of  briefs,  see  Rule  14,  S.  D., 
Rule  18,  N.  D,  ante',  and  as  to  abstracts  and  briefs  in  criminal  cases,  see 
Rule  15,  S.  D.,  Rule  19,  N.  D.,  ante;  and  as  to  abstracts  and  briefs  and  serv- 
ice of  same  in  state  causes,  see  Rule  16,  S.  D.,  Rule  20,  N.  D.,  ante.  Rule 
2,  S.  D..  Rule  26,  N.  D.,  Post,  provides  for  distribution  of  abstracts  and 
briefs. 

RULE  19,  S.  D.  RULE  23,  N.  D. 

COUNSEL,  NUMBER  OF  TO  ARGUE  CAUSE-SUBMISSION  OF  ON 
BRIEFS.  Only  two  counsel  shall  be  permitted  to  argue  for 
each  party  in  a  cause,  except  in  capital  cases,  and  the  court 
may  limit  the  time  to  be  occupied  by  counsel  for  each  side,  be- 
fore the  argument  shall  commence;  and  any  cause  may  be  sub- 
mitted on  printed  arguments  or  briefs. 

As  to  number  of  counsel  who  may  be  heard,  in  criminal  cases,  see  sec. 
7519,  Comp.  Laws,  sec.  8346,  Rev.  Codes,  N.  D.  p.  444,  ante. 

Consult,  as  to  time  occupied  by  counsel  in  argument,  next  Rule;  as  to 
call  of  calendar.  Rule  21,  S.  D.  Rule  25,  N.  D.  infra. 

RULE  20,  S.  D.  RULE  24,  N.  D. 

ARGUMENT,  TIME  ALLOWED  FOR— PERMISSION  FOR  MORE. 
In  the  argument  of  a  cause  not  more  than  one  hour  shall  be  oc- 
cupied by  counsel  upon  each  side,    exclusive  of  the  time  neces- 


194  RULES  OF  SUPREME  COURT.  " 

sarily  occupied  in  reading  the  record,  unless  by  the  express 
permission  of  the  court,  obtained  before  commencement  of  the 
argument. 

As  to  number  of  counsel  to  argue  cause,  see  preceding  Rule;  as  to  call 
of  calendar,  see  next  rule. 

RULE  21,  S.  D. 

CALENDAR,  CALL  OF,  TWO  EACH  DAY— MOTION  DAY— CALEN- 
DAR INDICATES  DAY— HEARING  OF  CAUSES— CRIMINAL  CASES  AD- 
VANCED. The  court,  on  the  first  day  of  each  term,  will  com- 
mence'calling  the  causes  in  the  order  in  which  they  stand  upon 
the  calendar,  and  will  proceed  to  call  not  more  than  two  upon 
each  day,  until  disposition  has  been  made  of  all  causes  thereon. 
The  first  day,  however,  upon  which  each  circuit  shall  be 
reached,  shall  be  the  motion  day  of  that  circuit,  and  no  cause 
shall  be  heard  on  that  day,  except  for  disposition  of  motions. 

The  calendar,  as  printed,  shall  indicate  upon  what  day 
each  circuit  is  liable  to  be  reached. 

No  cause  shall  be  heard  in  advance  of  the  day  when  it  will 
be  reached,  in  its  order,  at  the  rate  of  two  cases  per  day,  un- 
less by  leave  of  court  and  consent  of  counsel  for  both  appellant 
and  respondent. 

When  a  case  is  called,  in  its  order  and  on  its  proper  day, 
if  the  parties,  or  either  of  them,  are  ready,  it  shall  be  heard, 
but  if  neither  of  the  parties  is  ready  to  proceed  with  the  argu- 
ment or  to  submit  the  cause,  it  shall  go  to  the  foot  of  the  calen- 
dar or  be  disposed  of  as  the  court  may  direct. 

CrimiDal  causes  may  be  advanced  by  leave  of  the  court,  on 
motion  of  either  party. 

See  references  below  the  N.  D.  rule,  infra. 

RULE  25,  N.  D. 

SAME— DAY  TO  DAY  DURING  TERM— TEN  CASES  LIABLE  TO 
CALL— CRIMINAL  CASES  ADVANCED.  The  court  on  the  first  day 
in  each  term  shall  commence  calling  the  cases  for  argument  in 
the  order  in  which  they  stand  on  the  calendar,  and  proceed 
from  day  to  day  during  the  term  in  the  same  order,  (except  as 
hereinafter  provided),    and  if  the  parties  or  either  of  them 


RULE  22,    S.    D.  495 

shall  be  ready  when  the  case  is  called,  the  same  shall  be  heard.        ' 
And   if  neither   party   shall   be  ready  to  proceed  in  the  argu- 
ment, the  case  shall  go  to  the  foot  of  the  calendar,  and  be  con- 
tinued or  dismissed,  as  the  court  may  direct. 

Ten  cases  only  shall  be  considered  as  liable  to  be  called  on 
each  day  during  the  term,  including   the    one  under  argument.. 

Criminal  causes  may  be  advanced  by  leave  of  the  court  on 
motion  of  either  party. 

As  to  order  of  civil  causes  on  the  calendar,  see  Rule  9,  S.  D.  Rule  11, 
N.  D.  ante;  as  to  state  cases,  Rule  8,  S.  D.  Rule  10,  N.  D.  a»te;.and  as  to 
writs  of  error  and  citations  in  criminal  cases,  see  Rules 5  and  6  ante. 

As  to  length  of  time  for  argument,  see  Rule  20,  S.  D.  Rule  24,  N,  D. 
supra;  as  to  number  of  counsel  who  may  argue  case.  Rule  19,  S.  p.  Rule  23, 
N.  D.  supra. 

[Author's  Note.  Under  the  S.  D.  Rules,  the  date  on  which  each 
case  on  the  printed  calendar  is  likely  to  be  reached,  is  stated  immediately 
above  the  title  thereof,  from  page  to  page;  and  the  motion  day  for  each  ju- 
dicial circuit  is  set  forth  in  a  special  table  at  the  beginning  of  the  calendar. 
In  practice  the  particular  causes  as  set  down  upon  the  calendar  are  almost 
invariably  heard  on  the  specified  day,  unless  otherwise  disposed  of  by  con- 
sent of  counsel,  or  on  account  of  noncompliance  with  the  Rules.  Criminal 
causes  are  placed  at  the  beginning  of  the  calendar,  under  the  heading 
"State  Cases,"  and  those  in  which  the  State  is  a  party  follow  next  in  order 
(and  immediately  preceding  the  general  calendar)  under  the  heading  "Pre- 
ferred Appeals."] 

As  to  the  power  and  duty  of  the  supreme  court  to  regulate  the  prac- 
tice, and  the  position  of  causes  on  the  calendar,  ietc,  see  sec.  4821,  Com  p. 
Laws,  sees.  5172,  5168,  Rev.  Codes,  N.  D.  pp.  255,  256,  257-8,  ante. 

As  to  terms  of  court,  see  sec.  4821,  Comp.  Laws,  sees.  377,  378,  Rev. 
Codes,  N.  D.  pp.  255,  256,  ante. 

As  to  continuance  of  causes  over  the  term,  etc.,  see  sec.  5171,  Rev. 
Codes,  N.  D.  p.  257,  ante. 

As  to  concurrence  of  judges,  in  pronouncing  judgment,  see  sec.  4822, 
Comp.  Laws,  sec.  5173,  Rev.  Codes,  N.  D.  p.  258,  ante.  As  to  decisions  in 
writing,  filing  same,   see  sec.  5169,  Rev.  Codes,  N.  D.  p.  259,  ante. 

RULE  22,  S.  D. 

DISTRIBUTION  OF  ABSTRACTS  AND  BRIEFS.  The  clerk  shall 
distribute  the  printed  abstracts  and  briefs  required  by  these 
rules  to  be  furnished  him,  as  follows:  One  copy  of  each  to 
each  of  the  judges  when  the   case   is  called  for  hearing;  one 


496  RULES  OF  SUPREME  COURT. 

copy  of  each  to  the  reporter  of  the  supreme  court,  and  two 
copies  of  each  to  the  state  library,  and  the  remaining  copies  to 
be  by  him  kept,  with  the  papers  in  the  case. 

RULE  26,  N.  D. 

SAME.  The  clerk  shall  distribute  the  printed  abstracts  and 
briefs  required  by  these  rules  to  be  furnished  him,  as  follows: 
One  copy  of  each  to  each  of  the  judges  when  the  case  is  called 
for  hearing;  one  copy  of  each  to  the  reporter  of  the  supreme 
court,  and  the  remaining  copies  to  be  by  him  kept  with  the  pa- 
pers in  the  case.  In  criminal  causes,  when  under  Rule  20,  the 
printing  of  briefs  and  abstracts  is  dispensed  with,  the  clerk 
shall  deliver  one  copy  of  each  to  each  of  the  judges,  (two  of 
which,  upon  the  determination  of  the  case,  will  be  returned  to 
the  clerk,  one  for  the  use  of  the  reporter,  and  the  remaining 
copy  he  shall  retain  with  the  papers  in  the  case. ) 

Consult,  as  to  abstracts,  Rules  12,  13,  15,  16,  S.  D.,  Rules  16,  17,  19,  20, 
N.  D.,  ante\  as  to  briefs,  Rule  14,  S.  D.,  Rule  18,  N.  D,,  ante. 

RULE  23,  S.  D. 

MOTIONS,  IN  WRITING-EIGHT  DAYS'  NOTICE— GROUNDS- 
COPIES  SERVED.  All  motions,  except  as  hereinafter  provided, 
shall  be  heard  upon  the  motion  day  for  the  circuit  (see  Rule 
21)  from  which  the  case  comes,  in  which  such  motion  is  made. 
And  all  motions  made  or  submitted  to  the  court  shall  be  in 
writing,  and  upon  notice  to  the  adverse  party  of  at  least  eight 
(8)  days,  stating  the  grounds  thereof,  but  the  court  may,  by 
order  to  show  cause,  fix  a  shorter  time.  Copies  of  the  papers 
upon  which  the  motion  will  be  based  shall  be  served  with  such 
notice  or  order,  except  that  the  records  of  the  case  on  file  may 
be  particularly  referred  to  without  serving  the  same. 

See  references  and  decisions  below  the  N.  D.  Rule,  infra. 

RULE  27,  N.  D. 

SAME— AT  LEAST  ONE  DAY'S  NOTICE— WHEN  PAPERS  TO 
ACCOMPANY— OPENING  AND  CLOSE.  Motions,  except  for  orders 
of  course,  shall  be  brought  upon  notice;  and  when  not  made 
upon  the  records  or  files  of  the  court,    the  notice  of  motion 


RULE  27,    N.    D.  497 

shall  be  accompanied  by  the  papers  on  which  the  motion  is 
founded,  copies  of  which  shall  be  served  with  the  notice  of  mo- 
tion. Motions  shall  not  be  taken  up  until  the  day  following 
the  service  thereof,  unless  the  case  is  sooner  reached  for  hear- 
ing. Upon  the  hearing  of  a  motion,  or  order  to  show  cause, 
the  moving  party  shall  be  entitled  to  open  and  close;  Provided, 
That  the  papers  on  both  sides  shall  be  read  in  the  opening. 

Motion  to  Dismiss  Appeal,  Made  Only  on  Motion  Day,  in  What 
Cases.  Under  Rule  23  of  this  court,  a  motion  to  dismiss  an  appeal  can  only 
be  made  on  the  motion  day  of  the  circuit  fi'om  which  the  appeal  comes, 
when  the  grounds  of  the  motion  are  that  the  original  papers  were  not 
transmitted  to  this  court  before  the  CQmmencement  of  the  term,  or  that  the 
abstract  and  brief  were  not  served  within  the  time  prescribed  by  the  rules 
of  this  court.     Shickle-Harrison   &  Howard  Iron  Co.  v.  City  of  Rapid  City 

et  al,    S.  D ,  66  N.  W.  499.     Court  May  Order  Cause  Shown  on 

Other  Day,  When.  But  the  court,  by  that  rule,  has  reserved  to  itself  the 
right  in  special  cases  to  grant  an  order  to  show  cause,  when,  in  the  opinion 
of  the  court,  the  facts  stated  will  authorize  such  an  order;  and  in  such  case 
the  same  may  be  heard  at  a  day  in  the  term  other  thfln  that  specified  in  the 
rule.  Id.  Order  to  Show  Cause,  Returnable  Any  Time.  The  rules  of 
this  court  and  the  statute  allow  the  hearing  of  an  order  to  show  cause  why 
an  appeal  should  not  be  dismissed,  at  any  time  which  may  be  fixed,  in  the 
discretion  of  the  court.  State  v.  Sioux  Falls  Brewing  Co.  et  al,  2  S.  D.  363, 
60  N.  W.  629. 

[Author's  Note.  The  statutory  provision  involved  in  the  above 
decisions,  is  sec.  5325,  Comp.  Laws,  as  amended  by  chap  70,  Sess. 
Laws,  1893,  which  amended  section,  as  to  time  for  serving  notice  of  motion, 
reads  as  follows:  "When  notice  of  motion  is  necessary  it  must  be  served 
six  days  before  the  time  appointed  for  the  hearing,  but  the  court  or  judge 
by  order  to  show  cause,  may  prescribe  a  shorter  time,"  etc.  That  section 
before  such  amendment  required  eight  days  notice;  and  Rule  23  of  the  su- 
preme court  was  evidently  based  upon  that  provision,  as  to  time  of  service 
of  notice.  It  has  been  held,  in  several  unreported  cases,  that  six  days'  no- 
tice is  now  (since  said  sec.  5325  was  so  amended)  sufficient.  r1[t  has  also  been 
held,  under  that  rule,  in  various  unreported  cases  where  motions  were 
made,  that  the  motion  papers  must  set  forth  the  grounds  of  the  motion,  and 
a  failure  to  do  so  has  been  held  good  ground  for  denial  of  a  motion  to  dis- 
miss an  appeal. 

An  unwritten  rule  of  the  S.  D.  court,  pertaining'  to  motion  papers,  re- 
quires that  upon  all  motions  the  moving  party  shall  furnish,  for  use  of  the 
judges,  three  typewritten  copies  of  the  original  papers  {makiDg,  together  with 
32— T  P 


*  (This  last  sentence  misstates  the  view  of  the  supreme  court.  The 
eight-day  rule  is  still  in  full  force,  the  court  regarding  the  amendment  of 
1893  as  inapplicable  to  practice  in  the  supreme  court.) 


498  RULES  OF  SUPREME  COURT. 


the  original,  four  sets  of  papers);  and  the  same  with  reference  to  papers 
outside  of  the  record,  presented  by  respondent  upon  the  motion.  This  re- 
quiixment  should  be  constantly  kept  in  view  by  practitioners.] 

RULE  24,   S.  D. 

REHEARING,  GRANTED  ON  PETITION  FILED  AND  SERVED,  AT 
SAME  TERM— COPIES— GROUNDS— REMITTITUR  HELD— ANSWER- 
HEARING.  A  petition  for  rehearing  after  judgment,  can  be  pre- 
sented only  at  the  term  at  which  judgment  is  entered,  unless 
by  special  leave  granted  during  the  term,  and  must  be  printed 
or  typewritten,  and  briefly  and  distinctly  state  its  grounds; 
and  will  not  be  granted  or  permitted  to  be  argued  unless  a 
judge  who  concurred  in  the  judgment  desires  it,  and  a  majority 
of  the  court  so  determines. 

In  each  case  decided  the  remittitur,  unless  otherwise  spec- 
ially directed,  will  be  held  in  this  court  thirty  days  from  the 
date  of  filing  the  decision.  Either  party  desiring  to  apply  for  a 
rehearing  must  within  said  thirty  days  file  in  the  office  of  the 
clerk  of  this  court  five  printed  or  typewritten  copies  of  his  pe- 
tition for  such  rehearing,  supported  by  such  argument  and 
authorities  as  he  may  choose — serving  a  copy  thereof  within 
the  same  time  upon  the  opposite  attorney,  who  may,  within  ten 
days  after  receipt  thereof,  file  with  the  clerk  of  this  court  five 
printed  or  typewritten  copies  of  his  answer  thereto,  with  ar- 
gument and  authorities,  and  serve  a  copy  thereof  on  the  op- 
posite attorney.  The  application  for  rehearing  will  then  be 
determined  by  the  court  on  such  petition  and  answer. 

If  no  petition  be  filed  within  the  time  stated,  or  if  such  ap- 
plication be 'denied,  the  clerk  shall  forthwith  remit  the  case  to 
the  court^below.  In  order  to  save  the  right  of  either  party  to 
move  for  a  rehearing  no  decision  will  be  filed  within  thirty  days 
of  the  final  adjournment  of  any  term. 

See  references  and  decisions  below  the  N.  D.  Rule,  infra. 

RULE    29,  N.D. 

REHEARING  PETITION  FILED,  WHEN— NOT  SERVED— GROUNDS 
OF— COPIES— REMITTITUR. STAYED,  WHEN— ARGUED  WHEN-PRE- 
CEDENCE.     Whether  a  decision  is  handed  down  in  term  time  or 


RULE  29,    N.    D.  499 

in  vacation,  a  petition  for  a  rehearing  will  be  entertained  if 
five  copies  of  the  same  be  filed  with  the  clerk  within  twenty 
days  after  the  decision  is  filed,  and  the  remittitur  will  be  stayed 
during  the  twenty  days,  except  in  cases  where,  by  special  or- 
der, the  court  shall  direct  that  the  remittitur  be  sent  forthwith 
to  the  court  below.  The  petition  for  a  rehearing  shall  be  ex 
parte,  and  s^iall  not  be  orally  argued.  The  petition  must  be 
printed  or  type  written,  and  shall  briefly  and  distinctly  state 
the  grounds  upon  which  the  rehearing  is  requested.  It  need 
not  be  served  upon  opposite  counsel.  Where  a  rehearing  is 
granted  in  term  time,  the  case  will  not  (unless  by  special  or- 
der of  the  court)  be  reargued  at  the  same  term  except  by  con- 
sent. When  the  rehearing  is  granted  in  vacation,  and  less  than 
six  days  prior  to  the  first  day  of  the  next  regular  term,  the 
case  shall  not,  except  by  consent  or  by  special  order  of  the 
court,  be  argued  at  such  term.  Rearguments  of  cases  shall  or- 
dinarily take  precedence  on  the  calendar  of  all  other  matters 
before  the  court  except  motions  and  criminal  business. 

[Author's  Note.  All  that  part  of  Rule  24,  S.  D.  following  the  first 
paragraph,  was  adopted  as  an  addition  thereto,  and  promulgated,  March  18, 
1893,  to  take  effect  April  4,  1893.] 

Consult,  as  to  remittitur,  Rule  26,  S.  D.  Rule  31,  N.  D.  infra. 

As  to  costs,  consult  same  Rules^ 

See,  for  statutory  provisions  as  to  rehearing,  sec.  5238,  Oomp.  Laws, 
sec.  5628,  Rev.  Codes,  N.  D.  pp.  250-1,  ante,  and  decisions  thereunder;  sec. 
4822,  Comp.  Laws,  sec.  5173,  Rev.  Codes,  N.  D.  p.  258,  ante. 

As  to  remittitur,  see  same  sections,  and  sec.  5239,  Comp.  Laws,  sec. 
5629,  Rev.  Codes,  N.  D.  p.  253,  ante;  also  sees.  7524,  7525,  Comp.  Laws,  p. 
447,  ante,  and  sees.  8350,  8354,  8355,  Rev.  Codes,  N.  D.  pp.  445,  447, 
ante. 

(a.)     The  Petition — The  Practice. 

Petition  Must  Be  at  Same  Term,  or  Leave  Granted — Purpose  of 
Rule.  An  application  for  rehearing  will  not  be  entertained  unless  a  peti- 
tion is  filed,  or  at  least  leave  granted  therefor,  during  the  term  at  which 
the  judgment  is  entered,  as  provided  by  Rule  24  of  this  court.  Wright  v. 
Sherman,  3  S.  D.  367,  53  N.  W.  425.  See  Brooks  v.  Railroad  Co.,  102  U. 
S.  107.  The  court  in  Wright  v.  Sherman,  supra,  say:  "On  account  of  this 
rule,  and  to  give  counsel  in  any  case  time  to  inform  themselves  concerning 
the  opinion  of  this  court,  and  to  move  for  a  rehearing,  if  they  so  desire, 
this  court  has  established  the  practice  of  filing   no  decision  during  the  last 


500  RULES  OF  SUPREME  COURT. 

twenty  days  of  the  term."  Cannot  Be  Reheard  After  Term  When  De- 
cided. A  Ciise  cannot  be  reargued  and  reheard  after  expiration  of  the  term 
at  which  it  was  decided.  Roberts  v.  Haggert,  4  Dak.  210,  29  N.  W.  656. 
Hudson  V.  Guestier,  7  Cranch  1;  Cameron  v.  McRoberts,  3  Wheat.  591; 
Bank  of  U.  S.  v.  Moss,  6  How.  31;  Hunter's  lessee  v.  Wharton,  6  Cranch 
316;  Skillern's  Ex'rs  v.  May's  Ex'rs,  6  Cranch  267;  The  Hiram,  1  Wheat. 
442;  The  Santa  Maria,  10  Wheat.  442;  Davis  v,  Packard,  8  Pet.  323;  Boyce's 
Ex'rs  V.  Grundy,  9  Pet.  290;  Ex  Parte  Story,  12  Pet.  843;  Mitchel  v.  U.  S., 
15  Pet.  84.  Brown  v.  Aspden,  14  How.  26;  Public  Schools  v.  Walker,  9 
Wall.  603;  U.  S.  v.  Knight's  Adm'rs,  1  Black  488;  Freem.  on  Judgm.,  sec. 
96,  and  cases  there  cited.  These  cases  proceed  upon  the  theory  that  the 
court  loses  jurisdiction  of  the  case  at  the  end  of  the  terra  at  which  it  is 
heard  and  decided,  for  all  purposes  except  the  correction  of  clerical  errors 
in  the  record.     See,  Roberts  v.  Haggert,  supra. 

New  Matter  Stated  Affecting  Merits,  Considered  on  Rehearing. 
When  a  petition  for  rehearing  states  new  matter,  which  may  materially  af- 
fect the  merits  of  the  main  controversy,  and  which  was  not  considered  by 
the  appellate  court  at  the  time  of  rendition  of  the  opinion,  a  rehearing  will 
be  granted  for  the  purpose  of  considering  such  now  matter.  Kirby  v.  Wes- 
tern Union  Tel.  Co.,  4  S.  D.  439,  57  N.  W.  199.  Technical  Ground— Not 
Granted  on,  First  Raised  on  Rehearing.  Where  a  re-examination  of  the 
record  strengthens  the  confidence  of  the  court  in  the  correctness  of  the 
former  decision,  the  decision  will  not  be  reversed  on  a  technical  ground  pre- 
sented for  the  first  time  in  petition  for  rehearing.  Mattoon  v.  Freemont, 
E.  &  M.  V.  R.  Co.,  . . . .  S.  D ,  60  N.  W.  740.  Not  Granted  on  Ques- 
tions Not  Discussed  in  Briefs,  Nor  Assigned  as  Error.  A  rehearing  will 
not  ordinarily  be  granted  upon  questions  not  discussed  by  counsel  in  their 
briefs,  or  which  are  not  presented  by  the  assignments  of  error.  John  A. 
Tolman  Co.  v.  Bowerman  et  al,  S.  D ,  60  N.  W.  751.  Control- 
ling Question  Must  Have  Been  Overlooked,  or  Probable  Error  Commit- 
ted. A  rehearing  will  only  be  allowed  when  it  is  made  to  appear  that  some 
question  which  might  have  been  controlling  in  the  case  has  been  overlooked 
by  the  court,  or  where  it  is  made  to  appear  that  this  court  has  probably 
committed  an  error  in  the  decision  of  a  question  raised  and  argued.     Grigs- 

by  et  al  v.  Minnehaha  county,    S.   D ,   64  N.   W.   179,     Restating 

Former  Position,  Reiterating  Claims,  Futile.  But  where  the  petition  for 
rehearing  only  restates  the  position  taken,  and  reiterates  the  claimn  made 
on  the  original  argument,  whether  oral  or  printed,  a  rehearing  will  not  be 
allowed  upon  a  suggestion  that  upon  a  reargument  petitioner  could  satisfy 
the  court  that  its  former  decision  was  wrong.     Id. 

Death  of  Judge— No  Reargument  of  Submitted  Case.  The  death  of 
a  member  of  this  court  and  the  qualification  of  his  successor,  does  not  ren- 
der necessary  a  reargument  of  a  case  argued  and  submitted  prior  to  the 


RULE   29,    N.    D.  501 

death  of  such  deceased  member,  where  the  surviving  judges,  constituting 
then  and  now  a  majority  of  the  court,  ai*e  agreed  as  to  its  disposition.  State 
V.  Sioux  Falls  Brewing  Co.  et  al,  6  S.  D.  360,  58  N,  W.  928. 

Costs  on  Rehearing — Reversal  on  Other  Ground.     In  Brown  et  al  v. 

Edmonds,  ....  N.  D ,  66  N.  W.  310,  in  adhering   to  the  views  formerly 

announced  in  sustaining  the  order  appealed  from,  on  one  ground,  but  re- 
versing it  on  another  ground,  on  rehearing,  costs  were  allowed  appellant  on 
rehearing.  Costs  on  Rehearing,  Same  Amount  as  on  Original  Argu- 
ment. For  argument  on  rehearing  in  this  court,  the  prevailing  party  is  en- 
titled to  receive,  as  a  part  of  his  costs  and  disbursements,  a  sum  equal  to  the 
amount  allowed  for  the  original  argument.  Kirby  v.  Western  Union  Tel. 
Co.,  ....  S.  D ,  65  N.  W.  482. 

(b).     On  New  Abstracts. 

After  Case  Submitted— Additional  Abstract  Only  in  Exceptional 
Case.  After  a  case  on  appeal  or  writ  of  error  has  been  submitted  and  de- 
cided, this  court  will  not  permit  an  additional  or  amended  abstract  to  be 
filed,  unless  the  case  is  a  very  exceptional  one;  f(»llowing  Ayres,  Weather- 
wax  &  Reid  Co.  v.  Sundback,  5  S.  D.  362,  58  N.   W.   929;  Merchants'  Nat. 

Bank   v.    McKinney,    ....S.  D 60  N.    W.    162.     Reargument  at  Next 

Term  on  Additional  Abstract,  Denied,  An  application  for  reargument, 
in  a  case  decided  at  a  former  term,  and  to  be  allowed  to  file  an  additional  ab- 
stract, denied.  Ayres,  Weatherwax  &  Reid  Co.  v.  Sundback,  5  S.  D.  362, 
58  N.  W.  929.  Unobjectionable  Abstract,  Case  Decided  on— Reargument 
on  New,  Denied,  When.  Where  a  case  is  submitted  by  both  sides,  and . 
decided,  upon  an  abstract  to  which  no  objection  is  made,  an  application  to 
reargue  upon  a  new  abtsract  to  be  presented  will  be* denied,  unless  the  cir- 
cumstances are  very  exceptional.     Harrison   v.  Chicago,  M.  &  St.  Paul  Ry. 

Co S.  D ,  62  N.  W.  376;  Ayres,  Weatherway  &  Reid  Co.,  5  S.  D. 

362,   58  N.    W.   929;  Merchants'  Nat.    Bank  v.  McKinney, S.  D....,  60 

N.  W.  162. 

(c).     Remand— Jurisdiction. 

No  Rehearing    After  Remittitur    Goes    Down — Jurisdiction    Lost. 

Where,  after  decision  of  a  case  in  this  court,  the  remittitur  goes  down,  un- 
der the  rules  of  court,  and  without  fraud,  accident,  or  inadvertence,  this 
court  loses  jurisdiction  of  the  case,  and  will  not  entertain  an  application  for 

rehearing.     Dempsey  v.  Billinghurst, S.  D ,  65  N.  W.   427;  Haynes, 

New  Tr.  &  A  pp.  sec.  292,  etseq.  and  cases  cited.  Reargument  After  Remand 
Denied  Effect  of  Remand.  In  Bentley  et  al  v.  Fraley  1  Dak.  36;  46  N.W.  505  a 
motion  for  reargument  in  the  supreme  court,  after  the  cause  had  been  there 
heard,  and  remanded  for  a  new  trial,  and  a  new  trial  was  had,  from  the  de- 
cision on  which  another  appeal  was  taken,  and  the  cause  was  entered  on  the 
calendar  of  the  supreme  court,  and  at  a  subsequent  term  appellant  caused 
an  entry  to  be  made  on  the  calendar,   viz,    "mis-entered," — was  denied;  the 


502  RULES  OF  SUPREME  COURT. 

decisions  below  having  been  upon  a  motion  to  confirm  a  sale,  and  the  ap- 
pellant contending  that  the  supreme  court  should  have  sent  down  a  special 
mandate  to  the  court  below  to  award  execution  on  the  judgment  below, 
upon  deciding  the  case  in  the  first  instance,  the  supreme  court  having  re- 
manded "the  motion  and  case"  to  the  court  below,  the  effect  of  which,  as 
held  by  the  court,  being  to  merely  open  the  case  for  a  new  trial;  it  being 
further  contended  that  the  supreme  court  had  not  lost  jurisdiction  by  vir- 
tue of  its  remanding  order. 

RULE  25,  S.  D. 

OPINIONS,  IN  WRITING,  AND  FILED.  The  opinion  of  the 
court  on  all  questions  reviewed  on  writ  of  error  or  appeal,  as 
well  as  opinions  on  all  important  motions,  collateral  questions, 
and  points  of  practice,  shall  be  reduced  to  writing  and  filed 
with  the  clerk  in  open  court. 

RULE  30,  N.    D. 

SAME— ON  MOTIONS,  ETC.,  WHEN.  The  opinion  of  the  court 
in  all  cases  decided  by  it,  whether  originating  in  the  supreme 
court,  or  reaching  it  by  appeal  or  writ  of  error,  will  be  re- 
duced to  writing  and  tiled  with  the  clerk  either  in  open  court 
or  in  vacation.  The  court  will  also  file  written  opinions  upon 
all  motions,  collateral  questions  or  points  of  practice  when  the 
same  are  deemed  exceptionally  important. 

Consult,  as  to  remittitur,  Rule  24,  S.  D.  Rule  29,  N.  D.  supra. 

As  to  announcing  and  filing  opinions,  see  sec,  4823,  Comp.  Laws,  sec. 
5174,  Rev.  Codes,  N.  D,  p.  258,  ante;  as  to  decisions  in  writing,  see  sec.  5169, 
Rev.  Codes,  N.  D.  p.  259,  ante. 

As  to  entry  of  judgment,  and  remitting  copy,  etc.,  in  criminal  cases, 
see  sec.  7524,  Comp.   Laws,  sec.  8354,  Rev.  Codes,  N.  D.  p.  447,  ante. 

RULE  26,  S.  D. 

TAXING  COSTS  — INSERTION  OF  IN  JUDGMENT— ITEMS  AN- 
NEXED—REMITTITUR,  CLERK  FIRST  PAID.  It  shall  be  the  duty 
of  the  clerk  to  insert  the  amount  of  the  costs  in  the  body  of 
the  order  or  judgment  remitted  to  the  court  below,  and  annex 
to  the  same  the  bill  of  items  taxed  in  detail;  but  such  order  or 
judgment  shall  not  be  remitted  in  civil  causes  until  thirty  days 
after  the  filing  of  the  same,  unless  by  special  order  of  the 
court,  or  a  judge  thereof;  and  not  until  the  clerk's  fees  in  this 
court  shall  have  been  paid. 


RULE   31,    N.    D.  503 


RULE  31,  N.    D. 

SAME—ORIGtNAL  CAUSES,  COSTS  TAXED  HERE,  OTHERS  BE- 
LOW—RE  I/IE  W  OF  TAXATION  OF.  In  all  cases  originating  in  this 
court  the  costs  and  disbursements  will  be  taxed  by  the  clerk  of 
this  court.  In  other  cases  the  costs  and  disbursements  of  both 
courts — except  the  fees  of  the  clerk  of  this  court,  which  shall 
be  taxed  by  him  without  notice— shall  be  taxed  in  the  district 
court  after  the  remittitur  is  sent  down,  and  the  amount  thereof 
shall  be  inserted  in  the  judgment  of  the  court  below.  In  civil 
cases  the  remittitur  will  not  be  transmitted  until  the  fees  of  the 
clerk  of  this  court  shall  first  have  been  paid.  In  all  cases 
where  parties  are  dissatisfied  with  any  bill  of  costs  as  taxed  by 
the  clerk  of  this  court  the  matter  complained  of  will  be  re- 
viewed informally  and  readjusted  by  this  court  at  any  regular 
session  thereof. 

Consult,  as  to  costs  for  abstracts,  briefs,  etc.,  Rule  18,  S.  D.,  Rule  22, 
N.  D.,  ante;  also,  decisions  under  Rule  24,  S.  D.,  Rule  29,  N.  D.,  swpra-^  also, 
under  Rules  12,  13,  14,  S.  D.,  Rules  16,  17,  18,  N.  D.,  ante. 

As  to  clerk's  fees,  consult  Rule  3,  ante,  and  statutory  provisions  cited 
and  referred  to  thereunder. 

Appeal  from  Taxation  of  Costs. 

Sec.  5190,  Comp.  Laws,  provides:  "Any  person  aggrieved  by  the  tax- 
ation of  costs  may  appeal  therefrom  to  the  court  or  a  judge  thereof."  (Sec. 
380,  C.  C.  P.) 

[Author's  Note.]  No  rule  has  been  adopted  by  the  supreme  court  of 
South  Dakota  upon  the  subject  of  appeal  from  taxation  of  costs.  While  the 
above  cited  section  seems  not  to  have  been  construed  by  the  court,  it  is  re- 
garded as  applying  to  costs  taxed  in  thQ.  supreme  court,  as  well  as  to  those 
taxed  in  the  circuit  court;  and  appeals  are  regularly  allowed  in  the  supreme 
court. 

The  practice  is  somewhat  informal,  and  is  substantially  as  follows: 

The  attorney  of  the  objecting  party,  at  the  time  of  taxing  costs,  files 
with  the  clerk  any  written  objections  which  he  may  desire  to  make  to  the 
taxation  of  any  items  of  costs  contained  in  the  notice  of  taxation;  and  if  the 
objections  are  overruled  by  the  clerk  and  such  items  are  taxed,  it  is  usual 
for  the  attorney  to  request  that  the  clerk  note  exceptions,  on  the  notice  of 
taxation,  to  the  rulings  of  the  clerk  in  allowing  the  items  controverted, 
though  usually  the  written  objections  alone  are  filed.  The  notice  of  taxa- 
tion of  costs,  together  with  the  objections  (and  exceptions,  if  any,)  are  then 
handed  to  the  presiding  judge  by  the  clerk,  pursuant  to  the  appeal.     The 


504  RULES  OP  SUPREME  COURT. 

court  thereafter  considers  the  case  as  to  costs,  upon  such  appeal,  by  exam- 
ination of  the  papers  thus  submitted.  No  formal  notice  of  appeal  is  usually 
given  or  filed,  though  such  practice  is  proper.  The  decision  upon  the 
appeal  is  duly  announced  in  open  court;  of  which  decision  the  clerk  informs 
the  attorneys  of  both  parties  by  mail;  and  the  bill  of  costs  is  made  to  con- 
form to  the  decision,  if  any  change  is  made  therein  upon  appeal.  No  oral 
argument  is  heard  upon  such  appeal.  Brief  reference  to  statutes  and 
authorities  may  be  made  in  writing,  in  connection  with  the  objections  above 
outlined. 

Upon  appeal  from  taxation  of  costs,  it  is  usual  for  th«  clerk  to  hcJld  the 
remittitur  until  the  determination  of  the  appeal. 

In  case  application  for  rehearing  is  made,  such  action,  in  practice, 
operates  to  stay  further  proceedings  relative  to  taxation  of  costs,  until  the 
determination  of  the  application  for  rehearing;  and  (in  the  absence  of  con- 
troversy over  costs)  the  clerk  usually  adds  to  the  sum  of  the  items  as  origi- 
nally taxed,  the  additional  costs  incidental  to  the  proceedings  on  rehearing; 
thus  obviating  the  service  of  a  new  notice  of  taxation,  and  re-taxation  of 
costs. 

Reporter's  Transcript,  Costs  for  Allowed  as  Necessary  Expense, 
When— Statutes  Construed.  Sec.  483,  Comp.  Laws,  provides:  "The 
judge  may,  on  application  of  either  party  in  a  criminal  case,  direct  such  re- 
porter to  make  out  and  file  with  the  clerk  of  the  court  a  transcript  of  his 
shorthand  notes  in  long  hand,  when  the  same  is  needed  in  such  cause,  and 
he  shall  receive  as  a  compensation  therefor  such  sum  as  may  be  fixed  by  the 
judge,  not  exceeding  fifteen  cents  for  each  one  hundred  words,  to  be  audited 
and  paid  as  provided  in  section  482."  Sec.  482  provides  that  his  compensa- 
tion shall  be  "audited  and  paid  by  the  county  or  subdivision  wherein  such 
service  shall  be  rendered,  upon  the  order  of  the  judge."  Sec.  484,  Comp. 
Laws,  provides:  "Such  reporter  shall,  on  the  request  of  either  party  in  a 
civil  or  criminal  case,  make  out  such  transcript  and  deliver  the  same  to  the 
party  desiring  it,  op  payment  of  his  fees  therefor  by  such  party  at  the  rate 
per  folio  as  provided  in  section  483,~and  the  amount  allowed  such  reporter 
for  transcripts  required  in  the  case  shall  be  taxable  costs."  Under  these 
provisions,  it  was /leZd,  that  a  respondent  in  the  supreme  court  is  entitled 
to  have  allowed  him,  as  taxable  costs,  the  amount  properly  paid  for  stenog- 
rapher's transcript,  when  such  expense  is  shown  to  have  been  necessary. 
Ellis  v.  Wait,  4  S.  D.  504,  57  N.  W.'  232.  It  was  also  held,  in  that  case, 
that  chap.  66,  laws  1893,  entitled  "An  act  relating  to  costs  in  civil  actions," 
does  not  apply  to  costs  in  the  supreme  court.  Costs  for  Making  "Case" — 
Bill  of  Exceptions — New  Trial  ''on  Minutes" — Stenographer's  Tran- 
script—Statute. Under  sec.  1,  sub.  3,  chap.  11,  Bess.  Laws  of  1883,  (Comp. 
Laws,  sec.  5187,)  allowing  the  prevailing  party  costs  "for  making  and  serv- 
ing a  case    *    *    *    containing  exceptions,"  such  party  is  entitled  to  the  al- 


RULE   31,    N.    D.  505 

lowance  provided  in  said  section,  in  the  supreme  court,  where  he  had  made 
a  motion  for  a  new  trial  in  the  court  below,  "on  the  minutes,"  and  the  bill 
of  exceptions  was  prepared  for  such  motion.  First  Nat.  Bank  of  Canton  v. 
North,  6  Dak.  136,  50  N.  W.  621.  In  such  case  the  fees  paid  the  stenog- 
rapher for  transcript  from  which  to  prepare  a  bill  of  exceptions  is  taxable  in 
the  supi'eme  court,  under  sec.  4,  chap.  52,  Sess.  Laws,  1879,  (Comp.  Laws, 
sec.  484,)  providing-  that  stenographer's  fees  for  transcript  "shall  be  taxable 
costs."  Id.  See  also,  Schwalbach  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  40  N.' 
W.  579;  Bradford  v.  Vinton,  27  Id,  2;  French  v.  FitcH,  35,  Id,  707;  Flood  v. 
Moore,  2  Abb.  N.  C.  91. 

Dismissal  of  Appeal  After  Argnment  on  Merits  —  Respondent's 
Costs  for  Brief.  Where  an  appeal  is  dismissed  on  motion  at  the  same  term 
at  which  the  case  stands  for  argument  upon  its  merits,  and  is  so  argued, 
the  court  reserving  its  decision  on  the  motion  to  dismiss,  respondent  is  en- 
titled to  have  taxed  his  proper  costs  for  printing  brief  on  the  merits.  Dalb- 
kermeyer  v,  Scholtes  et  al,  3  S.  D.  183,  52  N.  W.  871.  Appeal  for  Delay, 
Ten  Per  Cent  Damages,  When.  Sec.  5187,  Comp.  Laws,  subd.  5,  provides 
for  costs  as  follows:  "To  either  party,  on  appeal  to  the  supreme  court,  be- 
fore argument,  five  dollars;  for  argument,  fifteen  dollars;  and  when  a  judg- 
ment is  affirmed,  the  court  may,  in  its  discretion,  also  award  damages  for 
the  delay,  not  exceeding  ten  per  cent  on  the  amount  of  the  judgment."  Un- 
der this  subdivision,  it  was  held,  that  whenever  the  record  of  a  cause  clearly 
shows  upon  its  face,  or  from  facts  clearly  deducible  from  it,  that  the  appeal 
was  taken  for  delaj'  and  to  hinder  and  delay  the  collection  of  the  judgment, 
the  ten  per  cent  damages  authorized  by  said  subdivision  will  be  assessed, 
when  the  motion  to  dismiss  appeal  states  that  such  damages  will  be  insisted 
upon.  Himebaugh  et  al  v.  Crouch,  3  S.  D.  409,  53  N.  W.  862.  Unnecessary  and 
Irrelevant  Abstract — No  Costs.  Where  respondent's  abstract  is  entirely 
unnecessary  (it  being  in  this  case  taken  from  stenographer's  minutes,  not 
from  bill  of  exceptions,  and  much  of  it  not  the  subject  of  exception, )  no  costs 

are  allowed  for  its  printing.     Johnson  v.  Gilmore, S.  D ,  60  N.  W, 

1070. 

Costs  on  Rehearing,  Same  as  on  Original  Argrument.  For  argu- 
ment on  rehearing  in  this  court,  the  prevailing  party  is  entitled  to  receive, 
as  a  part  of  his  costs  and  disbursements,  a  sum  equal  to  the  amount  allowed 

for  the  original  argument.     Kirby  v.  Western  Union  Tel.   Co.,    S.  D. 

,  65  N.  W.  482.  AflSirmance  in  Part,  Reversal  in  Part — Costs  on  Re- 
hearing. In  Brown  et  al  v.  Edmonds  et  al,  5  S.  D.  508,  59  N.  W.  731,  where 
the  order  appealed  from  was  vacated  in  part  and  affirmed  in  part,  no  costs 
were  allowed  in  supreme  court  in  favor  of  either  party,  outside  of  clerk's 
costs,  taxed  against  respondents.  In  the  same  case,  on  rehearing,  the  case 
having  been  reversed  on  grounds  not  urged  upon  appeal  in  the  first  in- 
32i— T  P 


nOO  RULES  OF  SUPREME  COURT. 

stance,  the  court  say:  "The  former  order  as  to  costs  in  this  court  will  not 
be  modified,  appellant  being  allowed  costs  on  rehearing." 

Appeal  From  Taxation  of,  Not  Considered,  When.  An  appeal  from 
taxation  of  costs  by  the  clerk  of  supreme  court  will  not  be  considered,  as  the 
rule  of  the  court  prescribes  that  costs  of  such  court,  in  cases  originating  in 
a  lower  court,  shall  be  taxed  below  after  remittitur  sent  down.  Ja8j)er  v. 
Hazen,  1  N.  D.  210,  46  N.  W.  173.  The  court  in  that  case  say:  "In  the 
opinion  of  this  court  existing  statutes  contemplate  that  in  cases  originating 
in  courts  below  all  costs  and  disbursements  shall  be  taxed  in  the  lower 
court."    Jasper  v.  Hazen,  1  N.  D.  210,  46  N.  W.  173. 

RULE  27,  S.  D.,  RULE  32,  N.  D. 

DISMISSAL  OF  APPEAL,  ON  FAILURE  TO  COMPLY  WITH  RULES- 
DISCRETION.  A  failure  to  comply  with  any  of  the  requirements 
contained  in  these  rules  within  the  times  therein  provided,  will, 
in  the  discretion  of  the  court,  be  cause  for  dismissal  of  the 
appeal,  or  writ  of  error,  or  affirmance  of  the  judgment,  as  the 
case  may  demand. 

As  to  service  of  notice  of  appeal  see  Rule  4,  ante\  as  to  transcript  on 
appeal,  see  Rule  7,  S.  D.,  Rule  8,  N.  D.,  ante\  as  to  writs  of  error  and  cita- 
tions in  error,  see  Rules  5,  6,  ante\  as  to  assignment  of  errors,  Rule  11  S.  D., 
Rule  15  N.  D.,  ante\  as  to  service  of  abstracts  and  briefs,  Rules  12,  18,  14,  S. 
D.,  Rules  16,  17,  18,  N.  D.  ante\  as  to  form  and  size  of  same.  Rule  18  S.  D., 
Rule  22,  N.  D.  ante\  as  to  service  of  various  papers  in  state  causes,  Rule  16 
S.  D.,  Rule  20  N.  D.  ante\  and  references  and  debisions  thereunder. 

As  to  what  jadgments  may  be  appealed  from,  sec  sees.  5213,  5214, 
Comp.  Laws,  sees.  5603,  5604,  Rev.  Codes,  pp.  189,  194,  ante\  as  to  appealable 
orders,  see  sec.  5236  Comp.  Laws,  sec.  5626  Rev.  Codes  N.  D.,  pp.  232  et  seq., 
ante. 

(a. )    Motion  to  Dismiss  Appeal,  When  Returnable. 

Motion  Returnable  Order  on  Motion  Day,  When— Only  to  Show 
Cause  any  Day,  When.  Under  Rule  23,  a  motion  to  dismiss  an  appeal 
can  only  be  made  on  the  motion  day  of  the  circuit  from  which  the  appeal 
comes,  when  the  grounds  of  the  motion  are  that  the  original  papers  were 
not  transmitted  before  commencement  of  the  term,  or  that  the  abstract  and 
brief   were  not  served   within  the  prescribed  time.     Shickle-Harrison  & 

Howard  Iron  Co.  v.  City  of  Rapid  City  et  al,   S.    D . . . . ,  66  N.  W.  499. 

But  the  court,  by  that  Rule,  has  reserved  to  itself  the  right  in  special  cases 
to  grant  an  order  to  show  cause,  when,  in  the  opinion  of  the  court  the  facts 
stated  will  authorize  such  an  order;  and  in  such  case  the  same  may  be  heard 
at  a  day  in  term  other  than  that  specified  in  the  rule.  Id.  Order  to  Show 
Cause  on  Dismissal,  set  any  Time.     An  order  to  show  cause   why  an  ap- 


RULE   27,   S.    D.,    RULE   32,    N.    D.  507 

peal  to  the  supreme  court  shall  not  be  dismissed,  may  be  set  for  hearingaat 
any  time  which  may  be  fixed,  in  the  discretion  of  the  court.  State  v.  Sioux 
Falls  Brewing  Co.  et  al,  2  S.  D.  363,  50  N.  W.  629. 

(b. )    Notice  of  Appeal — Service  of,  Etc. 

Service  of  Appeal  Notice  Jurisdictional— no  Waiver  by  Stipula- 
tion— Appearance.  Service  of  notice  of  appeal  is  essential  to  jurisdiction 
of  the  supreme  court  to  review  the  cause,  and  cannot  be  waived  by  stipula- 
tion. Want  of  such  notice  may  be  taken  advantage  of  at  any  time  before 
there  is  a  postive  act  of  submission  to  the  appellate  court.  In  matter  of 
Opening  Gold  Street,  Deadwood,  v.  Newton,  2  Dak.  39,  8  N.  W.  139,  3  N. 
W.  311.  Mere  Filing  Appeal  Notice  With  Clerk,  Insufficient.  Under 
Code  Civ.  Proc,  Dakota  Territory,  providing  that  "an  appeal  must  be  made 
by  the  service  of  a  notice  in  writing  on  the  adverse  party  or  his  attorney, 
and  on  the  clerk  with  whom  the  judgment  or  order  appealed  from  is  en- 
tered, *  *  *  ,  "  the  mere  filing  of  the  notice  in  the  clerk's  office  fs  in- 
sufficient, and  appeal  will  bo  dismissed.  Peck  v.  Phillips,  4  Dak.  430,  34  N. 
W.  65.  (See  sec.  5215,  Comp.  Laws,  which  section  is  a  substantial  substi- 
tute for  sec.  407,  C.  C.  P.  upon  this  point.  See,  also,  the  cases  cited  under 
said  sec.  5215);  Valley  City  Land  &  Irrigation  Co.  v.  Schone  et  al,  2  S.  D. 
344,  50  N.  W.  356.  Caption  of  Appeal  Notice,  Irregularity  in,  When 
Not  Fatal.  Where  in  the  body  of  the  notice  of  appeal  a  sufficient  refer- 
ence is  made  to  the  judgment  appealed  from,  so  that  respondents  are  intel- 
ligently informed  from  what,  and  for  what,  tlie  appeal  is  taken,  the  appeal 
will  not  be  dismissed  for  irregularity  in  the  notice  of  appeal  in  omitting 
from  the  caption  the  name  of  one  of  the  parties  defendant.  Marshall  v. 
Harney  Peak  Tin  Mining,  Mill.  &  Manuf'g  Co,  1  S.  D.  350,  47  N.  W.  290; 
(on  rehearing)  3  S.  D.  473,  54  N.  W.  272. 

Voluntary  General  Appearance,  Waiver  of  Irregular  Service  of 
Appeal  Notice.  A  voluntary  appearance  by  respondent,  and  taking  steps 
in  the  cause  in  the  appellate  court,  is  a  waiver  of  a  mere  irregularity  in  ser- 
vice of  notice  of  appeal.  Holden  v.  Haserodt,  et  al,  2  S.  D.  220,  49  N.  W. 
97.  Affidavit  Denying  Service  of  Appeal  Notice,  Not  Considered — 
Record.  Upon  motion  to  dismiss  an  appeal,  an  affidavit  denying  service  of 
notice  of  appeal  cannot  be  considered;  the  question  will  be  decided  on  the 
record  properly  before  us.  Billinghurst  v.  Spink  County  et  al,  5  S.  D.  84, 
58  N.  W.  272. 

(c. )     Undertaking. 

Insufficient  Appeal  Undertaking,  New  One  Permitted.  An  affi- 
davit to  an  undertaking  on  appeal  that  does  not  substantially  comply  with 
sec.  5232  Comp.  Laws,  renders  the  undertaking  ineffectual;  but  this  court, 
upon  a  proper  showing,  and  upon  such  terms  as  may  be  just,  is  authorized 
to   permit  a  new  and  sufficient  undertaking  to  be  filed  in  this  court;  and  a 


508  RULES  OF  SUPREME  COURT. 

motion  to  dismiss  appeal  will  be  denied.  Tollerton  &  Stetson  Co.  v.  Casper- 
son,  S.  D ,  63  N.  W.  908.  Undertaking,  Served  on  Respond- 
ent's Attorney,  and  Respondent,  and  Filed— Good.  A  motion  to  dis- 
miss an  appeal  on  the  ground  that  the  appeal  was  not  perfected  by  service 
of  an  undertaking,  will  be  denied,  where  it  appears  that  the  notice  was 
served  upon  respondent's  attorneys  of  record,  and  an  undertaking  was  filed 
with  the  clerk  with  the  notice  of  appeal  and  was  served  upon  the  respond- 
ent personally.     McKittrick  v.  Pardee S.  D ,65  N.   W.   23.     (In 

this  case  respondent  had  appeared  generally  in  the  supreme  court  and  filed 
an  additional  abstract,  etc.)  Appeal  Undertaking,  Service  on  Party,  Fil- 
ing With  Clerk,  Sufficient.  On  an  appeal  to  this  court,  it  is  sufficient  to 
serve  the  undertaking  on  appeal  on  the  opposite  party,   and  file  it  with  the 

clerk  of  the  trial  court.    Tollerton  &  Stetson  Co.  v.  Casperson, S.  D. 

,63  N.  W.  908.  Insolvent  Surety,  No  Justification  Required — Mo- 
tion Denied.  A  motion  to  dismiss  the  appeal,  upon  the  ground  that  one  of 
the  sureties  in  the  appeal  undertaking  is  insolvent,  will  be  denied  where  re- 
spondent neglects  to  avail  himself  of  his  opportunity  to  test  the  sufficiency 
of  the  sureties  under  sec  5232  Comp.  Laws;  sec.  5230  Comp.  Laws,  is  only 
designed  to  meet  cases  where  a  surety  once  accepted  has  subsequently  be- 
come insufficient;  nor  can  respondent  obtain  an  order  in  this  court  for  a 
new  undertaking  upon  showing  a  surety's  irresponsibility,  known  to  re- 
spondent when  the  undertaking  was  served.     Winton  v.  Kirby  et  al, S. 

D ,60N.  W.  409. 

(d.)    Delay. 

Delay,  Absence  of  Diligence,  Good  Cause  for.  When  it  appears 
that  full  and  ample  time  has  elapsed  before  the  opening  of  a  term  of  this 
court,  since  perfecting  appeal,  to  have  complied  with  all  requirements  of 
the  statute  and  rules  of  court,  the  appeal  will  be  dismissed,  in  the  absence 
of  diligence  or  good  cause  shown  why  these  steps  were  not  taken.  Citizens' 
Bank  of  Pierre  v.  Crouch  et  al,  3  S.  D.  410,  53  N.  W.  Q62;  Himebaugh  et  al. 
v.  Crouch,  Id.  Delay — 10  Per  Cent  Damages  for.  When.  When  it  ap- 
pears that  the  appeal  was  taken  for  delay,  and  to  hinder  and  delay  the  col- 
lection of  the  judgment,  the  10  per  cent  damages  authorized  by  subd.  5,  sec. 
5187,  Comp.  Laws,  will  be  assessed,  when  the  motion  to  dismiss  states  that 
such  damages  will  be  insisted  upon.  Himebaugh  et  al.  v.  Crouch,  3  S.  D. 
410,  53  N.  W.  862.  Delay  in  Filing  Papers,  Serving  Abstract,  Appeal 
Dismissed.  Where  more  than  a  year  has  elapsed  since  appeal  taken,  and 
no  papers  on  appeal  are  filed,  and  no  abstract  or  brief  served  for  nearly  a 
year  after  appeal  taken,  this  court  will  dismiss  an  appeal,  if  no  sufficient 
explanation  or  excuse  is  offered  for  the  delay.  Smith  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.  4  S.  D.  30,  54  N.  W.  931;  Bank  v.  Crouch,  3  S.  D.  410,  53  N.  W. 
862.  Failure  to  Serve  Brief  and  Abstract — Papers  in  Respondent's  At- 
torney's Hands — Estoppel.     Respondent  cannot  object  to  an  appeal,  and 


RULE   27,    S.    D.,    RULE   32,    N.  D.  509 

successfully  move  for  dismissal  of  appeal,  where  the  failure  of  appellant  to 
serve  brief  and  abstract,  or  have  same  certified  and  docketed,  in  time, 
arises  from  the  fact  that  papers  necessarj-  to  appear  in  the  abstract  were  in 
the  office  of  respondent's  attorney  and  had  been  diligently  searched  for, 
and  copies  could  not  be  obtained.  Merchants'  Nat.  Bank  v.  McKinney  et  al, 
1  S.  D.  98,  45  N.  W.  203.  Appeal  Over  Two  Years  After  Judgment  Dis- 
missed—Revoking Attorney's  liicense.  An  appeal  from  a  district  or  cir- 
cuit court,  taken  more  than  two  years  after  the  rendition  and  filing  of  the 
judgment,  gives  this  court  no  jurisdiction,  and  must  be  dismissed.  This 
rule  applies  to  an  appeal  under  sec.  477,  Comp.  Laws,  from  a  judgment  re- 
voking the  license  of  an  attorney  and  counselor  at  law.  In  re  Houghton,  5 
S.  D.  537,  59  N.  W.  733.  Bill  Settled  Too  Late,  Not  Good  Ground.  A 
motion  to  dismiss  appeal  and  affirm  the  judgment  below,  on  the  ground  that 
the  bill  of  exceptions  attached  to  the  judgment  roll  was  not  settled  in  time, 
and  never  legally  settled  or  certified,  will  be  denied;  as,  if  it  was  never 
legally  settled  nor.  certified  it  would  constitute  no  part  of  the  judgment  roll, 
in  which  case  a  motion  to  purge  the  record  by  striking  out  the  bill  is  the 
proper  remedy,  and  in  the  absence  of  such  motion  the  entire  record  in  the 
judgment  roll  remains  intact,  and  must  be  considered  in  disposing  of  the 
case  upon  the  merits.  Gram  v.  No.  Pac.  R.  R.  Co.,  1  N.  D.  252,  46  N.-  W. 
972.  Bill  Settled  Too  Late — Engrossing  Same — Appeal  Dismissed — 
Statute.  After  a  trial  judge  has  decided  and  announced  what  shall  be  em- 
bodied in  a  bill  of  exceptions,  it  is  not  his  duty  to  engross  the  bill  and  he 
cannot  be  said  to  have  neglected  to  settle  puch  bill  unless  he  neglects  k) 
sign  it  after  presentation  to  him  for  signature,  engrossed  as  settled.  Held, 
there  is  in  this  case  failure  to  make  out  that  the  case  falls  within  the  excep- 
tion to  the  general  rule  under  the  statute,  as  to  time  within  which  the  ap- 
peal should  be  taken,  and  appeal  is  dismissed.  Edwards  &  McCuUoch  Lum. 
Co.  V.  Baker,  3  N.  D.  170,  54  N.  W.  1026.  Notice  of  Intention  Not  Served 
in  Time,  Not  Good  Ground.  The  fact  that  notice  of  intention  to  move  for 
a  new  trial  was  not  served  in  time,  is  not  good  ground  for  dismissing  the 
appeal.  McKittrick  v.  Pardee,  ....S.  D....,  65  N.  W.  23.  Appellant's 
Brief  Not  Served,  Abstract  Not  Indexed,  Not  Good  Ground.  A  motion 
to  dismiss  the  appeal  because  appellant  has  served  no  brief  as  required  by 
the  rules  of  court  and  by  a  certain  order  of  court,  and  that  appellant's  ab- 
stract is  not  indexed,  does  not  present  such  grounds  as,  under  the  circum- 
stances in  this  case,  require  this  court  to  exercise  its  power  of  dismissal; 

this  case  being  an  exceptional  one.     McKittrick  v.  Pardee, S.  D , 

65  N.  W.  23. 

(e. )    When  Appeal  Lies. 

Order  Without  Jurisdiction,  Refusing  Vacation  of  Appealable  Order, 
Appealable.  The  rule  that  an  order  refusing  to  set  aside  an  appealable 
order  is  hot  appealable,  is  not  imperative  where  the  first  order  was  plainly 


510  RULES  OF  SUPREME  COURT. 

made  without  jurisdiction;  and  a  motion  to  dismiss  such  appeal  will  be  de- 
nied. Thompson  &  Sons  Mf'g  Co.  v.  Guonthnor  et  al,  5  S.  D.  504,  59  N.  W. 
727;  Vert  v.  Vert,  3  S.  D.  619,  54  N.  W.  655.  Judge's  Decision,  Not  Court 
—Abstract  Showed  Court  Judgment — Motion  Denied.  Respondent  moved 
to  dismiss  the  appeal  for  the  reason  that  the  judgment  upon  a  demurrer  to 
the  answer  made  in  the  court  below  was  not  made  or  rendered  by  the  courts 
but  by  the  judge,  and  was  not  the  subject  of  an  appeal;  but  as  the  abstract 
purports  to  show  that  the  court  rendered  the  judgment,  and  respondent 
having  filed  no  abstract  contradicting  these  facts,  the  motion  to  dismiss 
will  be  denied.  Cleveland  v.  Evans  et  al,  6  S.  D.  53,  58  N.  W.  8.  Order  of 
District  Court  Dismissing  Appeal  From  County  Court,  Not  Appealable 
— Must  Be  Judgment.  An  order  of  the  district  court,  entered  in  its  min- 
utes by  the  clerk,  directing  dismissal  of  an  appeal  taken  to  that  court  from 
a  judgment  of  the  county  court,  does  not  itself  accomplish  dismissal  of  the 
appeal.  Until  a  judgment  is  entered  in  the  district  court  upon  such  order, 
the  action  will  be  pending  in  the  district  court;  and,  while  the  action  is 
pending  in  that  court  an  appeal  will  not  lie  to  this  court  from  the  county 
court,  in  which   the  judgment  was  originally  entered.     Field  et  al  v.  Great 

Western  Elevator  Co., N.  D ,  67  N.  W.  147;  in  re  Weber,  4  N.  D. 

119, '59  N.  W.  523.  This  rule  is  the  same  whether  the  order  of  dismissal 
made  by  the  district  court  is  made  upon  appellant's  motion  or  upon  that  of 
his  adversary.  Id.  Removal  of  Sheriff— New  Statute  Construed — No  Ap- 
peal From  Intermediate  Order.  Sec.  7838,  Rev.  Codes,  considered  and  con- 
strued. Said  section  creates  a  remedy,  and  authorizes  a  proceeding  sum- 
mary in  its  nature,  and  peculiar  to  itself.  The  statute  creating  the  remedy 
also  establishes  the  practice  governing  the  proceeding  to  obtain  the  rem- 
edy. The-  statute  does  not  contemplate  that  the  proceeding  shall  be  de- 
layed by  appeals  from  intermediate*  orders  or  rulings,  and  does  not  auth- 
orize any  appeal  before  entry  of  judgment.  Accordingly,  held,  that  an  at- 
tempted appeal  to  this  court  by  the  accused  from  an  order  of  the  district 
court  overruling  a  demurrer  to  the  written  accusation  will  not  lie.     Appeal 

dismissed.     In  re  McCabe, N.    D ,  67  N.  W.  143.     Judge's  Valid 

Order  Not  Applicable.  An  order  made  by  the  judge  of  the  court  below, 
under  a  statute  investing  the  judge,  as  distinguished  from  the  court,  with 
power  to  make  the  order,  is  not  appealable  to  this  court.  Brown  et  al  vs. 
Edmonds  et  al,  5  S.  D.  508,  59  N.  W.  731.  Motion  to  Confirm  or  Vacate 
and  Re-enter  Judgfment— Order  Not  Appealable.  Defendant  moved  in 
district  court  to  vacate  certain  judgments  entered  in  plaintiff's  favor,  and 
pending  defendant's  motion  plaintiff  made  a  counter  motion,  asking  either 
that  the  judgments  be  confirmed,  or,  if  vacated  on  defendant's  motion,  that 
a  new  judgment  be  entered  on  the  verdict.  Both  motions  were  denied  in 
same  order.  2/eid,  that  the  practice  of  mingling  distinct  and  independent 
matters  in  one  hearing,  and  disposing  of  the  batch  in  one  order,  is  con- 


RULE   27,    S.    D.,    RULE   32,    N.    D.  511 

demned.  Held,  further,  that  no  appeal  lies  in  plaintiff's  favor  from  such 
order,  and  the  appeal  is  dismissed.  Gould  v.  Duluth  &  D.  EL  Co.,  3  N.  D. 
96,  54  N.  W.  316. 

Action  For  Municipal  Penalty,  Appealable.  An  action  to  recover 
a  penalty  prescribed  by  a  municipal  ordinance,  not  made  a  criminal  act  by 
the  general  law  of  the  state,  is  a  civil  action,   and   may   be  brought  to  this 

court  by  appeal.     City  of   Sioux  Palls  v.  Kirby,     ....  S.  D ,   60  N. 

W.  156;  City  of  Huron  v.  Carter,  5  S.  D.  4,  57  N.  W.  947. 
Execution  land  Sale — No  Confirmation,  No  Appeal.  No  appeal  lies  from 
as  order  denying  a  motion  to  set  aside  a.  sale  of  land  on  execution,  no  order 
confirming  the  sale  having  been  made  in  the  court  below;  such  order  not 
being  a  final  order  under  sec.  10,  Code  Civil  Proc.  Dak.;  Bond  v.  Charleen 
et  al,  1  Dak.  215,  46  N.  W.  585.  See,  also,  Kingsland  v.  Bartlett,  28  Barb. 
480  (N.  Y.),  8  Abb.  Pr.  42;   Bank  v.  Newton,  23  N.  Y.  160. 

Appeal  Without  Authority,  Against  Appellant's  Wish,  Dismissed. 
An  appeal  will  be  dismissed  when  it  appears  satisfactorily  by  evidence  that 
it  was  taken  or  is  being  prosecuted  without  authority,  and  against  the  de- 
sire or  wish  of  the  appellant.  Dalbkermeyer  v.  Scholtes  et  al,  3  S.  D.  124, 
52  N.  W.  26 1 .  Appeal  by  Administrator  After  Discharge  of,  Dismissed — 
Power  of  Substitution.  An  appeal  by  and  in  the  name  of  an  administrator, 
taken  after  he  has  been  fully  discharged  and  a  new  administrator  appointed 
and  qualified,  gives  this  court  no  jurisdiction  over  the  estate,  or  of  a  cause  of 
action  against  the  estate,  and  will  be  dismissed.  McCormick  H.  M.  Co.  v, 
Snedigar  et  al,  3  S.  D.  302,  53  N.  W.  83.  Where  this  court  has  acquired  no 
jurisdiction  of  the  administrator  of  an  estate  or  of  the  subject-matter  of  the 
litigation,  it  has  no  power  to  substitute  another  party  to  the  action,  and  a 
motion  made  for  that  purpose  will  be  overruled.  McCormick  H.  M.  Co.  v. 
Snedigar  et  al.,  3  S.  D.  302,  54  N.  W.  814. 

(f).     Double  Appeals,  etc. 

Double  Appeal— From  Order  Befusing  New  Trial  for  InsuflB.ciency 
of  Evidence,  and  Later  Order,  Newly  Discovered  Evidence.  An  ap- 
peal before  judgment  from  an  order  refusing  to  set  aside  a  verdict,  and  to 
grant  a  new  trial,  on  the  ground  of  the  insufficiency  of  the  evidence,  and 
from  a  subsequent  order  refusing  the  same  relief  on  the  ground  of  newly 
discovered  evidence,  is  a  double  appeal,  and  will  be  dismissed  on  motion. 
An  appeal  from  the  judgment  might  bring  up  both  of  said  orders  for  re- 
view as  intermediate  orders  involving  the  merits,  and  necessarily  affecting 
the  judgment,  (sec.  5237,  Comp.  Laws,)  but  the  orders,  each  being  the  sub- 
ject of  an  independent  appeal,  cannot  be  thus  united  before  judgment  in  a 
single  appeal.  Hackett  v.  Gunderson,  1  S.  D.  479,  47  N.  W.  546;  Sewing 
Machine  Co.  v.  Gurnee,  38  Wis.  533;  Baliou  v.  Railroad  Co,,  53  Wis.  150,  10 
N.  W.  87.  Appeal  From  Judgment,  And  Order  Denying  New  Trial 
After  Judgment,  not  Double.     An  appeal  from  a  judgment  and  from  an 


512  RULES  OF  SUPREME  COURT. 

order  overruling  a  motion  for  new  trial,  made  after  judgment,  on  the 
ground  of  insufficiency  of  the  evidence  to  sustain  the  ve»"dict,  will  not  be  dis- 
missed as  a  double  appeal.  Hackett  v.  Gunderson,  1  S.  D.  479,  47  N.  W. 
546,  distinguished.  Hawl<insv.  Hubbard,  2  S.  D.  631,51  N.  W.  774;  Mor- 
ris V.  Niles,  67  Wis.  341,  30  N.  W.  353.  Appeal  From  Judgment  and 
Order  Denying  New  Trial  Before  Judgment — Latter  Surplusage — Mo- 
tion Denied.  If  an  appeal  be  taken  from  the  judgment  and  also  from  an 
order  denj  ing  a  new  trial  mjide  before  judgment,  the  latter  will  be  consid- 
ered as  surplusage,  and  disregarded;  and  where,  upon  such  appeal,  a  mo- 
tion to  dismiss  the  appeal  from  the  order  denying  a  new  trial,  upon  the 
ground  that  the  same  was  not  taken  within  60  days  after  the  notice  of  the 
order  denying  the  motion  was  served  upon  counsel  for  appellant,  the  mo- 
tion will  be  denied,  as  the  order  denying  a  new  trial  would,  after  such  dis- 
missal, still  be  before  the  court  for  review  as  an  intermediate  order.  Granger 
V.  Roll  et  al,  S.  D ,  62  N.  W.  970.  Court  Order  Refusing  Vaca- 
tion of  Judge's  Non-appealable  Order — Appeal  From  Both,  Not  Du- 
plicity. An  appeal  from  a  subsequent  order  of  the  court  refusing  to  set 
aside  a  judge's  non-appealable  order,  and  also  from  such  first  or  judge's 
order  in  one  notice,  will  not  be  dismissed  for  duplicity.  Brown  et  al  v.  Ed- 
monds et  al,  5  S.  D.  508,  59  N.  W.  731.  The  order  made  by  the  court  be- 
ing appealable,  including  in  the  notice  the  order  of  the  judge,  which  was 
not  appealable,  will  not  defeat  the  appeal  from  the  order  that  was  appeal- 
able. Id.  Appeal  Perfected  Transfers  Subject-Matter — Subsequent  Ap- 
peal, When  Nugatory.  An  appeal  to  this  court,  duly  perfected,  transfers 
to  this  court  the  subject-matter  of  the  appeal,  as  to  the  party  appealing; 
and  a  subsequent  appeal  by  the  same  party,   while  such  former  appeal  is 

pending,  is  nugatory.     State  ex  rel  Gunderson,  v.  King  et  al S.  D , 

60    N.    W.  75;  Hill  v.  Finnigan,  54  Cal.  311. 

Appeal  by  One  Defendant,  When  Others  May  Appeal  After. 
Where  co-defendants  answer  separately,  basing  their  defense  upon  inde- 
pendent grounds,  and  judgment  goes  against  all,  an  appeal  by  one  defend- 
ant who  answered  separately  does  not  affect  the  right  of  other  defendants  to 
subsequently  appeal  from  the  judgment  as  to  them.  State  ex  rel  Gunder- 
son V.  King  et  al S.  D ,  60  N.  W.  75. 

(g).     The  Merits— Generally. 

Transcript  Not  Containing  Necessary  Papers — Appeal  From  Or- 
der— Dismissed.  Where  the  transcript  on  appeal  does  not  contain  all  the 
papers  upon  which  the  order  below,  appealed  from,  was  granted,  and  the 
statute  relating  to  sending  up  of  transcripts  is  wholly  disregarded,  the  ap- 
peal will  be  dismissed.  Cole  et  al  v.  Cady  et  al,  2  Dak.  29,  3  N.  W.  322. 
Evidence  Not  of  Record,  Motion  to  Bring  it  in,  Not  Dismissal.  Where 
a  motion  is  made  to  dismsss  the  appeal,  on  the  ground  that  there  was  evi- 
dence not  made  a  matter  of  record,   the  appeal   will  not  be  difcmissed,  but 


RULE   28,    N.    D.  513 

the  proper  practice  is  to  bring  the  fact  of  such  omission  to  this  court  by 
motion,  supported  by  affidavits,  or  the  certificate  of  the  trial  judge,  or  both, 
and  then  for  this  court  to  permit  appellant  to  perfect  his  record  by  procur- 
ing a  bill  of  exceptions  to  be  settled  by  the  trial  judge,  containing  the  oral 
evidence  in  question;  the  appeal  being  taken  from  an  oi*der  made  upon  affi- 
davits.    Poley-Wadsworth   Implement  Co.  v.    Porteous, S.  D ,63  N. 

W.  155.  Record  Insufficient  for  Examination  of  Main  Questions — Review 
Limited,  no  Dismissal.  An  appeal  will  not  be  dismissed  because  the  rec- 
ord brought  to  this  court  is  not  sufficiently  full  for  the  examination  of  the 
main  questions  of  error  assigned;  but  appellant  will  be  confintd  to  such  as- 
signments of  error  as  properly  appear  upon  the  record.  Ellis  v.  Wait,  4 
S.  D.  31,  54  N.  W.  925;  Bank  v.  McKinney,  1  S.  D.  78,  45  N.  W.  203.  Ab- 
stract not  Showing  Entry  of  Judgment — Leave  to  Amend — Amend- 
ment While  Record  Here.  A  motion  to  dismiss  an  appeal  on  the  ground 
that  appellant's  abstract  fails  to  show  that  any  judgment  was  ever  entered, 
while  he  denied,  respondent's  additional  abstract  not  asserting  the  contrary, 
and  where  appellant,  on  the  hearing,  moved  for  leave  to  amend  the  ab- 
stract by  supplying  the  omission;  which  amendment,  however,  must  be 
formally  made  in  the  abstract  before  the  record  leaves  this  court.     McKit- 

trick  v.  Pardee S.  D. . . .,  65  N.  D.  23. 

Judgment  Entry — Conflicting  Abstracts — Appeal  Dismissed.  Appel- 
lant's abstract  did  not  show  the  judgment  appealed  from  entered  or  perfect- 
ed by  filing  judgment  roll  prior  to  appeal;  respondent's  additional  abstract 
stated  that  no  judgment  had  then  been  entered  or  judgment  roll  filed;  clerk's 
endorsement  on  judgment  itself  showed  it  was  entered  nearly  four  months 
after  appeal  was  taken;  clerk's  certificate  showed  that  at  this  date,  five 
months  subsequent  to  the  appeal,  no  judgment  roll  had  been  filed;  field,  that 

the  appeal  should  be  dismissed.     Greenly  v.    Hopkins,, S.  D ,  64  N. 

W.  1128.  Errors  on  Judgment  Roll— No  Bill  Settled,  Immaterial. 
The  fact  that  no  bill  of  exceptions  or  statement  was  settled  by  the  trial 
judge  is  no  gronnd  for  dismissing  an  appeal,  where  some  of  the  errors  as- 
signed are  predicated  on  the  judgment  roll  proper.     Kehoe  v.  Hanson  et  al, 

S.  D ,  60  N.  W.  31.    No  Motion  for  New  Trial  Below— Not  Good 

Ground.  In  Waldron  v.  Evans,  1  Dak.  10,  46  N.  W.  607,  the  court  refused 
to  dismiss  the  appeal,  the  motion  to  dismiss  having  been  made  upon  the 
ground  that  no  motion  for  a  new  trial  was  made  below.  No  Assignment  of 
Error— Judgment  Affirmed.  Where  appellant  fails  to  assign  error  on  ap- 
peal, as  required  by  court  rule  number  15  N.  D.,  (Rule  11  S.  D.)  the  judgment 
will  be  affirmed.  Globe  Inv.  Co.  v.  Boyum  et  al,  3  N.  D.  538,  58  N.  W. 
339. 

RULE    28,  N.D. 

MOTIONS  FOR  CONTINUANCE  AND  DISMISSAL,  FOR  WHAT  DAY 
NOTICED— OTHER  MOTIONS.     All  motions   for   continuance   and 
33— T  P 


514  RULES  OF  SUPREME  COURT. 

dismissal,  and  all  motions  affecting  the  place  of  causes  upon 
the  calendar  shall  be  noticed  for  the  first  day  of  the  term,  and 
will  be  for  hearing  previous  to  the  calling  of  causes  for  argu- 
ment. 

[Author's  Note.  By  inadvertence  in  arranging  these  rules,  this 
rule  was  omitted  from  the  place  in  which  it  was  intended  to  insert  it,  i.  e., 
immediately  below  Rule  23,  S.  D.  Rule  27,  N.  D.,  ante.] 

Consult  as  to  motions  generally,  Rule  27,  N.  D.  ante;  as  to  call  of  cal- 
endar. Rule  25,  N.  D.  an<e;  as  to  place  of  causes  on  calendar,  Rule  11,  N. 
D.  ante. 

RULE  28,  S.  D. 

ADMISSION  OF  ATTORNEYS— EXAMINATIONS,  AND  APPLICA- 
TIONS FOR.  Rules  of  the  Supreme  Court,  South  Dakota,  regu- 
lating the  examination  of  candidates  for  admission  to  practice 
as  attorneys  and  counselors  at  law;  being  a  substitute  for 
Rule  28. 

7.  When  Examination  Held.  Examinations  for  admission 
to  practice  law  in  this  state  under  chapter  21  Laws  of  1893,  shall 
be  held  on  the  first  day  of  each  term  of  the  Supreme  Court. 

2.  In  Open  Court.  Such  examinations  shall  be  conducted 
in  open  court  by  the  judges  of  said  court,  or  by  such  attorneys 
of  said  court  as  the  presiding  judge  may  appoint  for  that  pur- 
pose, or  by  both,  in  the  discretion  of  the  court. 

3.  Preliminary  Qualifications.  Prior  to  such  examination 
each  candidate  for  admission  shall  present  to  the  court  satis- 
factory evidence  that  he  is  a  resident  of  the  state;  that  he  is 
twenty-one  years  of  age;  and  a  certificate  of  good  moral  char- 
acter from  a  court  of  record  of  the  state. 

4.  License,  on  Satisfactory  Examination, — Oath — Fee.  If 
any  candidate  shall  thus  pass  a  satisfactory  examination  he 
shall  receive  a  license  as  an  attorney  and  counselor  at  law, 
upon  his  taking  the  oath  required  by  law,  and  paying  the 
clerk  of  the  court  a  fee  of  five  dollars. 

5.  Rejection  of  Candidate.  If  the  examination  of  any  can- 
didate shall  not  be  satisfactory  to  the  court,  such  candidate 
may  be  rejected,  or  the  further  examination  continued  until  the 
next  or  some  subsequent  term,  at  the  discretion  of  the  court. 


RULE  38,    N.    D.  515 

6.  Applicants  From  Other  States.  Applications  for  admis- 
sion upon  the  license  or  certificate  of  the  Supreme  Court  of  the 
United  States,  or  of  any  other  state,  may  be  upon  motion  in 
open  court  upon  production  of  such  certificate  or  license  and  a 
certificate  of  good  moral  character  from  a  court  of  record  of 
this  state.  If  these  are  satisfactory  to  the  court  the  candidate 
may  be  admitted  by  filing  with  the  clerk  of  this  court  his  oath 
as  required  by  law  and  the  payment  to  the  clerk  of  a  license  fee 
of  five  dollars. 

RULE  38,  N.  D. 

ATTORNEYS,  HOW  ADMITTED— APPLICATION  ON  FOREIGN  CER- 
TIFICATE, MOTION— OTHER  APPLICATIONS,  AT  TERM,  EXAMINA- 
TIONS IN  COURT— RECOMMENDATION  — EXCEPTIONS.  Appli- 
cations for  admission  to  practice  at  the  bar  of  this  state,  when 
made  upon  a  certificate  issued  by  the  courts  of  any  other  state, 
may  be  made  at  any  regular  or  special  term  of  this  court.  Such 
application  shall  be  upon  written  motion  made  by  a  member  of 
the  bar  of  this  court  and  filed  with  the  clerk,  and  with  such 
motion  shall  be  filed  an  affidavit,  or  the  certificate  of  an  attor- 
ney of  this  court,  showing  that  the  said  applicant  is  at  least 
twenty-one  years  of  age,  of  good  moral  character  and  an  in- 
habitant of  this  state,  and  that  such  applicant  practiced  law 
regularly  in  the  state  where  he  was  admitted  for  at  least  one 
year  after  such  admission.  All  other  applications  shall  be 
made  on  the  first  day  of  a  regular  term  of  this  court,  and  shall 
be  upon  like  motion,  and  with  such  motion  shall  be  filed  affi- 
davits, or  the  certificate  of  an  attorney  of  this  court,  showing 
that  the  applicant  possesses  the  qualifications,  and  has  devoted 
to  the  study  of  law  the  time  specified  in  section  2  of  an  act  ap- 
proved March  7,  1891.  If  satisfied  with  such  affidavits,  the 
court  shall  appoint  a  committee  of  not  less  than  three  mem- 
bers of  the  bar  of  this  court  to  examine  such  applicant  touch- 
ing his  qualifications  to  practice  as  an  attorney  in  the  courts  of 
this  state.  All  examinations  shall  be  had  in  open  court  unless 
otherwise  directed,  and  when  the  examination  is  not  had  in 
open  court  the   applicant  shall  not  be  admitted  to  practice  ex- 


516  RULES  OF  SUPREME  COURT. 


cept  upon  the  unanimous  written  recommendation  of  the  com- 
mittee making  such  examination,  which  recommendation  shall 
be  filed  with  the  clerk  and  attached  to  and  preserved  with  the 
motion  and  affidavits.  But  any  party  who  has  been  or  may  be 
prior  to  July  1,  1891,  admitted  to  practice  in  the  district  courts 
of  this  state,  in  accordance  with  the  law  in  force  at  the  time  of 
such  admission,  may  thereafter  be  admitted  to  practice  in  this 
court  under  the  rules  heretofore  existing.  This  rule  shall  not 
take  effect  until  July  1,  1891. 

[Author's  Note,] 

The  substance  of  the  chief  provisions  of  the  South  Dakota  law  of  1893, 
referred  to  in  paragraph  1  of  the  above  Rule,  is  as  follows: 

Sec.  1  requires  that  a  license  to  practice  law  shall  be  first  procured, 
which  authorizes  the  person  obtaining  it  to  practice  in  all  courts  of  the 
state;  no  person  being  refused  license  on  account  of  sex.  Sec.  2  requires  the 
candidate  to  first  obtain  certificate  of  good  moral  character  from  a  court  of 
record  of  this  state,  and  to  pass  a  satisfactory  examination  before  the  su- 
preme court.  Sec.  3,  that  he  or  she  must  be  twenty-one  years  of  age  and  a 
resident  of  thestate;  and  persons  having  license  or  other  satisfactory  certi- 
ficate from  the  supreme  court  of  any  other  State,  or  the  United  States,  that 
he  has  been  regularly  admitted,  etc.,  and  a  certificate  of  good  moral  char- 
acter, may  bo  licensed  by  the  supreme  court  to  practice  in  this  state  without 
examination.  Sec.  5,  that  when  attorneys  residing  in  other  States  or  Ter- 
ritories, and  regularly  admitted  therein,  desire  to  practice  in  this  State, 
they  may  be  allowed  to  do  so  on  the  same  terms  and  in  the  same  manner  as 
resident  attorneys.  Sec.  6  prescribes  the  oath  to  be  taken,  being  substan- 
tially the  former  statutory  oath.  (See  sec.  463,  Com  p.  Laws.)  Other  pro- 
visions empower  the  supreme  court  to  strike  the  name  of  an  attorney  from 
the  roll,  and  to  revoke  his  license,  and  the  circuit  court  to  suspend  him 
from  practice,  subject  to  right  of  appeal  to  supreme  court. 

The  former  Rule  28,  S.  D.  simply  referred  to  the  subject  to  the  statu- 
tory provisions,  as  follows:  "The  rules  governing  the  admission  of  persons 
to  practice  as  attorneys  and  counselors  at  law  of  this  court  are  prescribed  by 
law.     See  sections  462,  463  and  464,  Compiled  Laws." 

The  principal  features  of  the  N.  D.  statute  mentioned  in  the  N.  D. 
rule,  relative  to  admission,  etc.,  of  attorneys  to  practice,  are  as  follows: 

Sec.  1  empowers  the  supreme  court  to  admit  to  practice.  Sec.  2  re- 
quires the  applicant  to  be  twenty-one  years  of  age,  of  good  moral  character, 
an  inhabitant  of  the  State,  and  to  have  actually  in  good  faith  have  pursued 
a  regular  course  of  study  of  the  law  for  at  least  two  full  years,  either  in  the 
office  of  a  regular  practitioner  of  the  State,  or  in  some  reputable  law  school 
in  the  United  States,  or  partly  in  such  office  and  partly  in  such  school;   a 


RULE   30,    S.    D.  517 

school  year  of  not  less  than  thirty-six  weeks  to  be  considered  equivalent  to 
one  year.  Sec.  3  provides  for  examination  by  supreme  court,  or  a  commit- 
tee of  attorneys  appointed  by  it,  of  applicants.  Sec.  4  prescribes  the  oath. 
Sec.  5  permits  any  person  becoming^  a  resident,  having  been  admitted  in  any" 
other  state,  to  be  admitted  in  the  court's  discretion,  without  examination 
or  proof  of  period  of  study,  on  proof  that  he  has  regularly  practiced  one 
year  in  the  state  from  which  he  came  after  admission  there.  Sec.  6  em- 
powers the  supreme  court  to  prescribe  rules  upon  the  subject.  Sec.  7  per- 
mits attorneys  from  other  states,  actually  engaged  in  a  cause  or  matter 
pending  in  this  state,  to  appear  in  and  conduct  the  same,  without  being  sub- 
ject to  the  foregoing  provisions. 

Attorney  Licensed  by  Circuit  Court,  Admitted  in  Supreme,  With- 
out Examination— Statute  Construed  Com  p.  Laws,  sec.  462,  provided 
that  all  qualified  i«3rsons  might  be  licensed  to  practice  by  any  court  of  rec- 
ord, but  no  person  should  be  admitted  to  practice  before  the  supreme  court 
who  was  not  licensed  in  some  circuit  court.  Laws  1893,  chap.  21,  amended 
said  section  by  providing  that  no  one  should  be  licensed  except  on  examina- 
tion before  the  supreme  court,  but  that  all  persons  then  permitted  to  prac- 
tice might  continue.  Held,  that  one  theretofore  licensed  in  a  circuit  court 
could  thereafter  be  admitted  without  examination  in  the  supreme  court.  In 
re  HeUvig,  5  S.  D.  272,  58  N.  W.  674. 

RULE  29,  S.  D.  RULE  33,  N.  D. 

PREPARATION  OF  BRiEFS— STATEMENT  OF  FACTS— REFER- 
ENCE TO  ABSTRACT,  ONLY  STATEMENT  READ.  In  the  preparation 
of  briefs  in  causes  to  be  argued  in  this  court,  counsel  for  ap- 
pellant or  plaintiff  in  error  shall  prefix  to  their  brief  or  argu- 
ment a  concise  and  true  statement  of  the  facts  in  the  case  which 
are  material  to  the  points  of  law  to  be  argued,  with  proper 
reference  to  the  folios  of  the  abstract  which  sustain  them, 
which  statement  may  be  read,  or  its  substance  stated  orally  to 
the  court.  No  further  reading  of  the  abstract  will  be  allowed 
without  permission  of  the  court. 

[Rule  33,  N.  D.  is  the  same,  except  that  the  following  additional  words 
appear  at  the  end:     "See  Rule  15,  as  to  assignment  of  error."] 

As  to  form  and  size  of  briefs,  see  Rule  18,  S.  D.  Rule  22  N.  D.  ante. 

RULE  30,  S.  D. 

ABSTRACTS  AND  BRIEFS  IN  ORIGINAL  ACTIONS—ARGUMENT 
MUST  BE  ON.  All  actions  or  proceedings  originally  commenced 
in  this  court,  except  habeas  corpus,  shall  be  presented  for  argu- 


518  RULES  OF  SUPREME  COURT. 

ment  on  the  printed  abstracts  and  briefs,  which  shall  conform 
to  the  requirements  of  Rule  18. 

As  to  originiil  jurisdiction  of  the  S.  D.  supreme  court,  see  sections  3, 
4,  art.  5,  Constitution,  (see  sec.  3,  p.  190,  on<e)  sec.  4820,  Comp.  Laws,  p. 
255,  ante. 

As  to  original  actions  against  the  state,  in  the  supreme  court,  see  chap. 
1,  Laws  1890,  S.  D.  pp.  1,  2. 

As  to  original  jurisdiction  of  supreme  court  of  N.  D.  see  sec.  87,  (being 
sec.  3,'  art.  4,)  of  N.  D.  Constitution,  pp.  189-tK),  ante;  sec.  5165,  Rev.  Codes, 
N.  D.  p.  255,  ante;  sec.  5166,  Rev.  Codes,  et  seq. 

RULE  34,  N.  D. 

DISMISSAL  OF  APPEAL,  EFFECT  OF— DISMISSAL  WITHOUT 
PREJUDICE.  The  dismissal  of  an  appeal  is  in  effect  an  affirm- 
ance of  the  judgment  or  order  appealed  from,  unless  the  dis- 
missal be  expressly  made  without  prejudice  to  another  appeal. 

Consult,  as  to  dismissal  of  appeal.  Rule  32,  N.  D.,  ante. 

RULE  35,    N.  D. 

EXECUTIONS  OUT  OF  SUPREME  COURT,  SIGNING  AND  SEAL- 
ING—TO WHOM  DIRECTED— WHERE  ENFORCED.  Executions 
signed  by  the  clerk,  sealed  with  the  seal  of  this  court,  attested 
of  the  day  when  the  same  issued,  may  issue  out  of  this 
court  to  enforce  any  judgment  for  costs  made  and  entered  in 
cases  which  originate  in  this  court.  Such  executions  may  is- 
sue and  be  directed  to  any  marshal  of  the  supreme  court  of 
North  Dakota,  and  may  be  enforced  in  any  county  in  the  state 
in  which  a  transcript  of  such  judgment  for  costs  is  filed  and 
docketed. 

As  to  enforcetnent  of  judgment  of  supreme  court,  see  sec.  5168,  Rev. 
Codes,  N.  D.  p.  257-8,  ante. 

RULE  36,  N.  D. 

WRITS  AND  PROCESS  FROM  SUPREME  COURT,  SIGNING— SEAL- 
ING—ATTESTATION  —  WHEN  RETURNABLE  —  SAME  IN  VACATION. 
All  writs  and  process  issued  from  and  out  of  this  court  shall  be 
signed  by  the  clerk,  sealed  with  the  seal  of  the  court,  attested 
of  the  day  when  the  same  issued,  and  made  returnable  at 
any  day  in  the  next  term,  or  in  the  same  term  when  issued  in 
term  time;  and   a  judge   may,  by   endorsement  thereon,  order 


RULE   37,    N.    D.  519 

process  to  be  made  returnable  on  any  day  in  vacation,  when,  in 
his  opinion,  the  exigency  of  the  case  requires  it.  When  pro- 
cess is  made  returnable  in  vacation,  the  court  or  judge  direct- 
ing the  same  to  issue  shall  state  in  the  order  allowing  the  same 
the  time  and  place  when  and  where  the  writ  shall  be  re- 
turnable. 

As  to  issuance  of  writs  and  process,  see  sees.  5165  to  5168,  Rev.  Codes, 
N.  D.  (sees.  5165,  5168,  are  found  on  pages  255,  277,  ante.) 

RULE  37,  N.    D. 

FURTHER  RETURN  OF  CLERK  BELOW,  WHEN  ORDER  FOR  MADE 
—AFFIDAVIT  FOR.  If  the  return  made  by  the  clerk  of  the  court 
below  is  defective,  either  party  may,  on  an  afiidavit  specifying 
the  defect  or  omission,  apply  to  the  chief  justice  or  one  of  the 
judges  of  this  court  for  an  order  that  such  clerk  make  a  fur- 
ther return  and  supply  the  omission  or  defect  without  delay. 

Consult,  as  to  return  of  clerk.  Rule  9,  N.  D.,  ante;  as  to  transcript, 
Rule  8,  N.  D.,  ante. 

When  Too  Late  for  Court  Below  to  Amend  Record— Must  Apply 
to  Supreme  Coiul;.  When,  upon  appeal  from  district  court,  the  original 
papers  are  sent  to  this  court,  and  when  the  case  has  been  fully  argued  and 
submitted  upon  such  record,  the  trial  court  has  thereafter  no  authority  or 
power  to  amend  or  correct  such  record,  unless  upon  application  to  this 
court,  the  record  is  remanded   for  such  purposes.     Moore   v.    Booker  et  al 

(on  rehearing), N.  D ,  62  N.  W.  607;  Levi  v.  Carrick,  15  Iowa  444; 

Carmichael  v.  Vanderburr,  51  Iowa  225,  1  N.  W.  477;  Perry  v.  Breed,  117 
Mass.  155;  Penrice  v.  Wallis,  37  Miss.  172;  Keyser  v.  Farr,  105  U.  S.  265; 
State  V.  Jackson  (N.  C),  16  S.  E.  906;  Elliott,  App.  Proc,  sec.  205. 

Order  Adopting  S.   D.   Rules. 

Ordered:  That  the  foregoing  rules  be,  and  the  same  are  hereby  adopt- 
ed, and  shall  govern  the  practice  in  all  actions  and  proceedings  hereafter  to 
be  brought  into  this  court,  as  supplemental  to  the  various  provisions  of  the 
statute  of  South  Dakota  relating  thereto. 

Dated  at  Pierre,  December  19,  1891. 

Clerk's  General  Certificate  to  Rules  S.   D. 

Supreme  Court,         ) 
State    of     South    Dakota.  | 

I,  Ivan  W.  Goodner,  Clerk  of  this  Court,  do  hereby  certify  that  the 

within  and  foregoing  is  a  full,  true,  correct  and  complete  copy  of  the  Rules 


520  RULES  OP  SUPREME  COURT. 

of  this  Court,  as  adopted  by  said  Court  on  the  nineteenth  day  of  December, 
A.  D.  1891. 

Witness  my  hand  and  the  seal  of  this  court  this  nineteenth  day  of  De- 
cember, A.  D.  1891. 

[L.  S.]  Ivan  W.  Goodner, 

Clerk. 

Order  Adopting  N.  D.   Rules. 

Ordered:  That  the  above  and  foi'egoing  rules  (38  in  number)  be,  and 
the  same  are,  hereby  adopted  as  the  Rules  of  Practice  of  the  Supreme  Court 
of  North  Dakota.  Until  abrogated  or  modified,  said  rules  shall  govern  the 
practice  in  this  court,  and  shall  be  considered  supplemental  to  other  provis- 
ions of  law  regulating  the  practice.  Except  Rule  XXXVIII,  which  does 
not  take  effect  until  July  1,  1891,  all  of  said  rules  shall  take  effect  upon  and 
after  June  5,  1891. 

Adopted  at  Bismarck,  May  5th,  1891. 

Clerk's  Certificate  to  Rules,  N.  D. 

Supreme  Court, 


ss. 
State    of    South    Dakota. 

I,  R.  D.  Hoskins,  Clerk  of  the  Supreme  Court  of  North  Dakota,  do 
hereby  certify  that  the  above  and  foregoing  Rules  of  Practice  of  the  Su- 
preme Court  of  North  Dakota  are  true  and  correct  copies  of  such  rules  as 
adopted  by  the  court  at  a  regular  term  thereof. 

Witness  my  hand  and  the  seal  of  this  court  this  5th  day  of  May,  A.  D. 
1891. 

[L.  S.]  R.  D.  Hoskins, 

Clerk. 

[Author's  Note.  Following  are  some  general  authorities  upon  the 
subject  of  rules  of  court.] 

Rules  of  Court — Power  to  Mahe — Their  Relation  to  Constitutions 
and  Statutes. 

Meaning  of  "Rule."  The  signification  of  the  verb  "rule,"  in  the 
connection  in  which  it  is  here  used,  is:  To  command  or  require  by  a  rule  of 
court;  as  to  rule  the  sheriff  to  return  the  writ;  to  rule  the  defendant  to 
plead.     21  Am.  &  Eng.  Encyc.  of  Law,  437;   Black's  Law  Diet. 

Coxirts  Have  Inherent  Power  to  Make.  Every  court  of  record  has 
an  Inherent  power,  irrespective  of  statute,  to  make  rules  for  the  transaction 
and  regulation  of  its  business.  4  Am.  &  Eng.  Encyc.  of  Law,  459,  and  cases 
cited.  Must  Not  Conflict  With  Constitution  or  Statute.  Such  rules, 
however,  must  not  conflict  with  the  constitution  or  the  law  of  the  land.  4 
Am.  &  Eng.  Encyc.  of  Law,  450-1;  People  v.  McClellan,  31  Cal.  101;  Suck- 


RULE   37,    N.    D.  521 

ley  V.  Rotchford,  12  Grat.  (Va.)  60;  State  v.  Fifth  Circuit  Judges,  37  La. 
Ann.  696;  Campbell  v.  Shivers,  1  Ariz.  161;  Gormerly  v.  McGlynn,  84  N. 
Y.  284.  May  Rescind,  Rules — Application  of.  Courts  may  rescind  their 
rules,  or  may,  in  establishing  them,  reserve  the  exercise  of  discretion  for 
particular  cases;  but  a  rule  made  without  such  qualification  must  be  applied 
to  all  cases  falling  within  it,  until  it  is  rescinded.  4  Am.  &  Eng.  Encyc.  of 
Law,  451,  and  cases  cited.  Court's  Own  Construction  of.  Conclusive — Ex- 
ception. In  general,  the  construction  of  its  own  rules  by  a  court  of  general 
jurisdiction  is  conclusive;  and  it  is  only  where  wrong  is  manifest,  that  this 
discretion  will  be  interfered  with  or  invaded  by  an  appellate  court.  4  Am. 
&  Eng.  Encyc.  of  Law,  451;  Gannon  v.  Fritz,  79  Pa.  St,  303;  Dailey  v. 
Green,  3  Harris  (Pa.)  118. 

Court  May  Give  Time  to  Plead,  on  Condition.  A  circuit  court  may 
give  time  to  plead,  upon  condition  that  the  party  file  an  affidavit  of  merits. 
Scammon  v.  McKey,  21  111.  556.  Requiring  AflBLdavit  of  Merits.  A  rule 
requiring  an  affidavit  of  merits  may  be  adopted  in  the  exercise  of  an  un- 
doubted power  possessed  by  the  court.  Id.  Rule  Too  Broad,  Not  Good 
as  to  Excess.  When  a  rule  has  been  entered  in  the  exercise  of  the  legiti- 
mate power  possessed  by  the  court,  the  terms  of  which  are  broad  enough  to 
embrace  cases  as  to  which  the  court  has  no  right  to  impose  such  conditions, 
the  rule  is  a  nullity  as  to  such  excess,  while  it  may  have  full  force  in  cases 
where  the  court  has  a  right  to  impose  conditions.  Moir  et  al  v.  Hopkins 
etal,  21  111  558. 

Consult  also,  upon  the  general  subject  of  Rules  of  court,  Stanton  v. 
Embry,  (U.  S.)  3  Otto,  548;  Hunnicut  v.  Peyton,  12  Otto,  333;  Thompson 
V.  Hatch,  3  Pick.  (Mass.)  512;  Life  Ins.  Co.  v.  Francisco,  17  Wall.  (U.  S.) 
679;  Harris  v.  Comm.  35  Pa.  St.  416. 


33i— T  P 


special  Index  to  Rules  of  Court. 


South  Dakota  Rules. 


Page 

Rule  1 448 

Rule  2 449 

Rule  3 450 

Rule  4 452 

Rule  5 455 

Rule  6 457 

Rule  7 457 

Rule  8 464 

Rule  9 465 

Rule  10 466 

Rule  11 466 

Rule  12 474 

Rule  13 485 

Rule  14 490 

Rule  15 491 


Rule  16 492 

Rule  17 492 

Rule  18 492 

Rule  19 493 

Rule  20 493 

Rule  21 494 

Rule  22 495 

Rule  23 496 

Rule  24 498 

Rule  25 502 

Rule  26 502 

Rule  27 506 

Rule  28 514 

Rule  29 517 

Rule  30 517 


North  Dakota  Rules. 


Page 

Rule  1 448 

Rule  2 449 

Rule  3 451 

Rule  4 452 

Rule  5 456 

Rule  6 457 

Rule  7 457 

Rule  8 460 

Rule  9 463 

Rule  10 464 

Rule  11 466 

Rule  12 472 

Rule  13 472 

Rule  14 466 

Rule  15 466 

Rule  16 : 474 

Rule  17 485 

Rule  18 490 

Rule  19 491 


Page 

Rule  20 492 

Rule  21 492 

Rule  22 492 

Rule  23 493 

Rule  24 493 

Rule  25 494 

Rule  26  496 

Rule  27 496 

Rule  28 513 

Rule  29 498 

Rule  30 502 

Rule  31 503 

Rule  32 506 

Rule  33 517 

Rule  34 518 

Rule  35....- 518 

Rule  36 .• 518 

Rule  37 519 

Rule  38 515 


INDEX. 


Abstract. 

See  Record.     Bill  of  Exceptions. 

Must  show  appeal,  notice — presumption .205,  211,  478 

Stricken  out,  remainingr  record 248 

Printed,  when  not  required — copies 254 

Under  supreme  court  rules 474-485 

Service,  number,  contents,  form,  index 474-81,  517 

In  criminal  cases 491 

Record,  practice,  presumptions,  exceptions 478-82 

Conflicting^,  evidence  of  record 482-4,  489 

Motion  for  new  trial,  what  reviewed  without 484 

Emasculated,  no  reversal  on 479 

Delay  in  service  of — dismissal  of  appeal 480,  508 

When  deemed  to  claim  bill  settled 481,  488 

"When  deemed  to  claim  authenticated  record 481,  488 

Amended,  when  taken  as  true 483,  488 

Additional  service,  order  for,  terms 485-90 

When  proper — other  remedies — object  of 485-7 

Neglect — rehearing— conflict— duplication 486-7 

Motion,  when  proper — costs  for 487,  505 

Presumptions — recitals  in — findings 488-9 

When  record  examined — omissions 489-90 

Form,  size,  paper,  margin,  folios,  type,  costs 492-3 

Distribution  of,  and  briefs 495-6 

Indexing,  failure,  appeal  not  dismissed  for 509 

In  original  actions  in  supreme  court  (N.  D.) 517-18 

Abuse  of  Discretion. 

See,  New  Trial.. 78,  81-3 

In  order  discharging  receiver 239 

Accomplice. 

Testimony  of,  conviction,  corroboration 387-9 

Corroboration  necessary — cross-examination 388-9 

Account. 

Exhibition  of,  or  instrument,  to  party 310 

Accused. 

See,  Defendant. 

Acquittal. 

In  justices' court 326,  347 

Advising,  on  insufficient  evidence 382,  394 

Of  defendant,  to  be  witness  for  co-defendant 384 

When  a  bar  to  another  prosecution. 400 

Action. 

See,  Special  Proceeding,  Proceedings. 

What  is. 283 

Remand  of  criminal,  from'  supreme  court 445 


526  INDEX. 

Additional  Abstract. 

See  Abstract. 

To  show  affidavit  of  publication — leave  denied 139 

When  projiei*  on  appeal 214,  483,  485-8 

Adjournment 

See,  Term,  Calendar,  Continuance. 

Of  term,  supreme  court 257 

Of  county  court. .    276 

Of  circuit,  district  court,  during  jury's  deliberation 404 

Term  of  county  court  called  after,  of  circuit 273 

Administration. 

Letters  of,  not  stayed  by  appeal 284,  296 

Administrator. 

Appeal  by  after  discharge  gf,  dismissed 511 

Admiralty. 

Libel  in — statute — bond  on  appeal 218 

Affidavit  of  Merits. 

By  attorney,  must  know  facts 146 

Furnished  with  delayed  answer 146,  200 

Affirmance. 

Of  judgment,  appeal  from  justice 350 

On  criminal  appeal,  original  judgment  enforced 446 

In  part,  when  costs  allowed  on 505 

Dismissal  of  appeal  is,  unless  without  prejudice 518 

Dismissal  of  criminal  appeal  is,  of  judgment  below 287, 442 

Agency. 

See  Contract. 

In  setting  of  fire,  directing  verdict 18 

Authority  to  make  declarations 90 

Authority  to  execute  bank  draft,  cashier,  custom 107,  160 

Guaranty  agency  contract,  parol  statements 128 

Guaranty  agency  contract,  exhausting  collateral 160 

Statement  of  agent,  receipt  of  grain 129 

States  attorney,  authority  of  sue 142 

Boundary  line,  authority  to  survey 158 

Scope  of  authority,  cashier,  collecting  note • 159 

Bailee's  declaration,  as  to  ownership 159 

Loan  agent,  retaining  lawyer  through  subagent 160 

Taking  mortgage  in  settlement  of  note,  agent 160 

Ambiguous  instructions,  estoppel  of  principal 160 

Contract  in  agent's  name — agent  bound,  when 160 

Agency  sales,  guaranty,  offsetting  commissions 165 

For  contracting  sale  of  land,  evidence  of 169-70 

Agent. 

See,  Agency. 
Alimony. 

Consent  order  for,  discretion • 237 

Order  for  temporary,  counsel  fees,  appeal 242,  244 

Amendment. 

See,  Pleading,  Record. 

Of  pleading — irregularity,  new  trial 81-2 

Of  record,  on  remand 252 

Of  appeal  bond,  jurisdiction— changing 313,  318 

Of  record  on  appeal,  when  too  late  for — remand , 519 

Answer. 

Admitting  negligence — agency 119 

In  claim  and  delivery,  general  denial 119 


Index.  527 

Plea  of  property — judgment  for  return 120 

Sotting  up  statute  of  frauds 120 

Informal — waiver  of  summons   121 

Not  frivolous,  general  denial 196 

And  counterclaim,  same  facts 197 

After  time,  aflidavit — -. 200 

In  county  court '. 280 

Appeal. 

See,  Undertaking,  Bond,  Money,  Stay  of  Proceedings;  and  the  various 
Courts. 

Bond  on,  amendment  of,  discretion 82 

Special  verdict — Judgment — what  considered  on 139 

From  county  com'rs — de  novo  trial V. . .  139 

From  order,  surpl  usage,  when 153 

From  judgment  alone,  new  trial,  review 165 

From  judgment,  trial  by  court,  what  reviewed 155 

Review,  exception  to  findings— de  novo 165 

Trial  en,  on  different  theory 156 

From  probate  court,  retrial  when 156 

From  inferior  court,  regarded  with  favor 156 

Notice  of,  on  appeal  from  justice 156 

To  county  court,  new  trial,  new  judgment 156 

Bill  of  exceptions,  or  statement,  used  on,  when 187-8 

By  one  defendant,  others  appeal  afterwards 512 

From  justices',  magistrates',  to  county  court,  S.  D  264 

Jurisdiction  of  county  court,  S.  D.,  on 264-5 

From  justices'  court  to  circuit,  district. 311-21,  340-4 

In  criminal  cases 326-9,  348-51 

From  county  court,  S.  D.,  to  circuit 265 

From  county  court,  N.  D.,  to  district,  supreme 274-5 

From  probate  court  to  circuit,  district 280-8,  291-301 

From  probate  court  to  supreme 274 

From  circuit  and  district,  to  supreme  court 189-254 

When  no  other  court  of  appeal — judgment — order 189-90 

Constitutional  provisions  governing 189-90 

What  reviewed — parties  to 194,  480 

Notice  of,  service  of,  perfected  by — party's  name 204-6,  211,  452-3,  507 

Jurisdictional,  must  appear — loose  practice 204-5,  453-4,  478,  507 

Undertaking — money  in  lieu  of — conditions 215-16,  206,  232,  508 

New  one,  default  in,  one  or  more,  service 225,  227,  507 

Sureties,  justification,  notice  of 227-8,  231,  508 

Breach  of,  damages,  reference 230-1 

Pending  former  appeal,  nugatory 206,  215 

Time  allowed  for,  when  ripe  for 206-7,  209,  608 

Transcript  on,  certificate,  expense  of 210-11 

What  is  record  on — amendment  of 212-14,  480 

Reinstatement  of  appeal 214 

Stay  of  proceedings  on — statute — sureties 216-223,  228 

Not  on  appeal  from  intermediate  order 222-3 

By  state,  stays  execution • 224-5 

Amendment  to  perfect,  mistake,  accident 231-2 

Appealable  orders— non-appealable 232,  243,  207-9,  509-11 

What  reviewed  on,  without  exceptions 243-8,  480 

Intermediate  order  involving  merits 243-5,  610 

Motion  for  new  trial,  whether  necessary  to 244-6,  249 

Surplusage  on— double  appeal 240-2,  246,  511-12 

P>idence  on,  when  not  reviewed,  new  trial 249 

Power  of  supreme  court  on — remittitur — rehearing 250-1 

Waiver  of  right  to,  accepting  benefit  under. .   251 


528  INDEX. 

Further  proceedings  below,  on — disnaissal 253 

Reinstatement  of — supreme  court  rule 463-4 

All  evidence  received  below,  review  on . .  .253 

New  trial  on,  in  supreme  court 253,  481 

Civil  cases  on,  at  what  term  heard 254 

Second,  to  supreme  court,  calendar 255-512 

Prom  circuit  court,  appel-late  decision 265 

In  criminal  cases,  to  supreme  court 431-41 

What  errors  reviewed  on 424 

Who  may,  what  judgments,  appellant,  respondent 432,  434,  440 

By  defendant,  by  state — what  cases 434-5 

Time  for  appeal  —notice,  publication — filingf 435-6 

"When  deemed  taken— stay,  capital  cases 436-7 

Certmcate  of  probable  cause  on 437 

Suspension  of  execution  on,  certificate — custody 437 

Transcript  on,  filing,  clerk,  no  fees 438 

Several  defendants,  one  or  more  take 440 

Bail  on,  stay — inability,  certificate 440 

Return  of  execution,  discharge  of  defendant .  .440-1 

Dismissal  of,  for  irregularity 441-2 

Motion,  notice — another  appeal — undertaking 441-2 

Argument  of,  when,  postponement — hearing 443 

Affirmance  on — reversal— personal  appearance 444 

Dismissal  of,  under  rules  of  supreme  court 506-13 

For  want  of  brief — respondent  brings  record 490 

Costs  on,  after  argument  on  merits 505 

From  taxation  of  costs,  generally 503-6 

In  supreme  court,  under  rules 503  6 

Practice  in  S.  D.,  papers,  objections,  exceptions 503-4 

Appearance. 

In  probate  court — on  appeal  from 289,  293 

In  justice's  court,  N.  D.,  how  made 329 

Personal,  of  defendant,  not  in  supreme  court 444 

By  respondent,  waiver  of  notice  of  appeal  by 454,  507 

Appellant 

See,  Parties. 

Who  is,  on  appeal  to  supreme  court 194 

In  criminal  cases 434 

To  deposit  money  with  supreme  clerk 450-1 

Appellate  Jurisdiction. 

See,  Jurisdiction. 

Depends  on  compliance  with  statute 453 

Must  afiirmati vely  appear 453 

When  motion  for  new  trial  unnecessary  to 484 

Argument. 

To  jury,  in  civil  cases,  order  of 13 

To  jury,  criminal  cases — restriction 371,  383 

Of  special  verdict,  criminal  case 407 

Of  writ  of  error,  appeal,  notice,  restriction 442-4 

Notice  of,  under  supreme  court  rules 492 

Time  allowed  for,  supreme  court — permission 493-4 

Based  on  abstract  and  brief 517-18 

Arrest. 

Order  of,  civil  action,  aflBdavit 200 

Re -arrest,  of  defendant,  trial  in  another  county 394 

Assault. 

With  deadly  weaponi— intent,  presumption 376,  410 

With  intent  to  kill— degrees 376,  409 


INDEX.  529 

Verdict  on  charge  of — misdemeanor 409 

And  battery  with  deadly  weapon,  intent 409 

Assault  and  Battery. 

See,  Assault 409 

Assignment  of  Error. 

Reference  to  specifications  in 138 

Unspecified  errors  disregarded ". 138 

Record  must  show — ruling 138 

Shown  in  abstract — attempted,  in  brief 138-9 

In  denying  motion  for  new  trial 139 

In  criminal  procedure — vague  assignment 418 

Annexed  to  transcript,  supreme  court 338 

Under  supreme  court  rules 466-72 

Points,  specifications,  exceptions,  abstract 467-9 

Brief — specification  in  bill,  rule  relaxed 469 

Evidence,  insufficiency,  findings,  presumption 469  70 

Motion  for  new  trial — record,  review 471 

Confusion,  abstract — '"verdict  against  law" 471-2 

When  specifications  unnecessary — evidence 482 

Affirmance  of  judgnaent  for  want  of 513 

Attachment. 

Affidavit  for,  denial  of — vacating 89,  200 

Proceedings,  no  part  of  pleadings 119 

Claim  and  delivery,  officer,  release  of  attachment 143 

Affidavits,  further  time  for 144,  200 

Affidavits  before  referee 144,  200 

Action  on  contract,  conveyance — claim  not  due 199 

Appeal  from  order  in— stay 208,  223-4,  238 

Of  absent  jurors , 354 

Attorney. 

See,  Counsel. 

Withdrawal  of  from  case — new  trial 80 

Presumption  of  retainer  of 90 

Compensation  of,  skill — cross-examination  as  to 124 

Authority  of  to  appear,  setting  aside  judgment 151 

Revoking  license,  appeal 207,  509 

Cannot  be  surety  on  appeal 228 

Fees  of,  order  for,  appeal 242 

Who  may  act  as,  justice's  court 329 

Negligence  of,  collection  of  collateral 101 

Disbarment  of — statutory  grounds  only 173 

Appointment,  substitute  for  state's  attorney 401 

Examination,  admission  of — court  rules 514-17 

Examination,  when,  in  court,  preliminary  qualifications 514-15 

License — rejection '. 514-15 

Appointment  of  committee  for  (N.  D.) — on  motion 515-16 

From  other  states,  certificate,  on  motion 515-16 

Statutory  provisions — licensed  by  circuit  court 516-17 

Attorney  General. 

Citation,  briefs,  etc.,  served  on,  supreme  court 492 

Auterfois  Acquit. 

See,  Former  Acquittal. 

Bail. 

See,  Undertaking,  Money,  Deposit. 

In  county  courts 269,  277 

In  justices'  courts,  procedure 327-8,  348-50 

Of  witness,  on  further  prosecution  of  defendant 390 

By  defendant  held  for  trial,  another  county 392 


530  INDEX. 

Exoneration  of 393-4 

Necessjiry  for  stay,  criminal  ai)i)eal 440 

Certificate  of  {giving  of.  by  clerk 440 

Bailiff. 

Interested  in  case,  county  court 271-2 

Ballots. 

See,  Election  Ballots. 

Of  jury,  civil  action 9 

In  criminal  action 354-6 

Bar. 

See,  Acquittal,  Formal  Acquittal,  Conviction,   Former  Conviction,  Res 
Judicata. 

Conviction  or  acquittal  is,  to  further  prosecution,  when 400 

Former  verdict  not  pleadable  in 424-5 

Bastardy. 

Instruction  as  to  preponderance  of  evidence 23.  264 

Proceedings,  jurisdiction,  county  court,  S.  D 263-4 

Plaintiff  in  case  of 264 

Battery. 

See,    Assault ' 409 

Bawdy  House. 

Evidence  of  keeping 379 

Beer. 

Judicial  notice  of  "lager  beer" 107 

Bias. 

See,  Challenge. 

Of  juror,  in  civil  action 9-11 

Of  ox)unty  judge,  S.  D 270 

Of  juror  in  criminal  action 366-8 

Newspaper  statement  as  basis  of 368-9 

Bigamy. 

Proof  of  marriage — cohabitation 397 

Bill  of  Exceptions. 

See,  Exceptions,  Statement  of  Case. 

Report  of  referee  incorporated  in 62 

Stenographer's  minutes  not  part  of,  nor  referee's 66 

To  ruling,  when  presented v 69 

Conformable  to  truth — filing,  signing. '. 69-70 

Settlement  of,  taken  at  trial. 70-1 

Contents  of,  amendments  to , 70-1,  73 

Extension  of  time  for  settlement  of 72-3,  185-7 

Two  methods  of  settling — filing 74 

Settlement  of,  taken  after  judgment 74-5 

Application  to  supreme  court  to  settle 75 

Ex-judge  may  settle— object  of  section 76 

When  necessary — motion  for  new  trial Ill 

Must  specify  particular  errors,  when 176,  213,  247 

Motion  for  new  trial  on 176,  180-1 

Settlement  of,  whether  jurisdictional 180 

What  is  neither  a,  nor  statement 184 

Used  on  appeal,  contents  of 187 

Whether  necessary  on  appeal— ^orders 212,  245-6 

Whether  necessary  on  appeal — judgment 245-6,  513 

Or  case  in  county  court,  S.  D.,  jurisdiction 265 

In  criminal  procedure 414-24 

Settled  when,  signed,  by  whom — filing 416-19 

Extending  time,  how— striking  out  matter 421,  439 


INDEX.  531 

General  exceptions  not  allowed  in 439 

To  conform  to  statute — court  rule 472-3 

When  disregarded — striking  out .472-3 

Costs  for  preparing,  when  allowed 504  5 

Settled  too  late,  appeal  dismissed,  when 509 

Bill  of  Sale. 

As  mortgage,  parol  evidence 127 

Bona  Fide  Purchaser. 

See,  Promissory  Note,  Negotiable  Instrument. 

Bond. 

See,  Undertaking,  Appeal, 
Common  law,  good  as,  admiralty 218-19 

Brief. 

Printed,  when  not  required — copies 254 

Under  supreme  court  rules 490-1,  517-18 

When  and  how  served — printed — contents 490-1,  517-18 

In  criminal  cases 491      ♦ 

When  appeal  dismissed  for  want  of 490,  508 

Costs  for,  when  disallowed — quotations 490-2 

Form,  size,  yiaper,  margin,  folios,  type 492-3 

Distribution  of,  and  abstracts 495-6 

Statement  of  facts  in,  reference  to  abstrcct 517 

In  original  actions  in  supreme  court 517-18 

Burden  of  Proof. 

See,  Evidence,  Negligence.. 

When  on  defendant,  in  murder 397 

Under  defense  of  self-defense 386 

Burglary. 

Allegations  in  information,  degree — ownership 268 

Calendar. 

See,  Causes. 

Cause  entered  on,  by  circuit,  dist.  clerk 6 

Place  of  cause  on,  supreme  court,  preference 256-7,  464-66 

Of  county  court,  of  probate 274,  297 

Case  appealed  from  justice  goes  on 320,  344 

Of  supreme  court,  call  of 494-5 

How  many  causes — motion  day — hearing 494-5 

Criminal  causes  advanced  on . .    494-5 

Call  of  Calendar. 

See,  Calendar .494-5 

Caption. 

See,  Appeal,  Party. 
Of  appeal  notice,  irregularity  in 507 

Capital. 

Clerk  of  supreme  court  to  reside  at 448 

Capital  Cases. 

state's  challenges  in 365 

Writ  of  error  stays  execution  in 436    , 

Capital  Offense. 

Defendant's  challenges 364 

Causes. 

Entered  on  calendar,  circuit,  dist.  court 6 

Order  of  on  calendar,  supreme  court — precedence 464-66 

Of  county,  probate  court 274,  297 

Submission  of  on  printed  briefs 493 


532  INDEX. 

Certificate. 

See,  Bill  of  Exceptions,  Statement  of  Case,  Transcript,  Judgment  Roll. 

Of  probable  cause,  on  writ  of  error 43fi-7 

Of  circuit  clerk  to  transcript — form 210,  438,  457,  461 

Of  judge  to  transcript,  when  unavailing 459.  472 

Of  district  judge  to  transcript 439,  472 

Of  evidence,  showing  substance  of 482 

Of  clerk  to  rules  of  supreme  court 519-20 

Certification  of  Case. 

By  county  court  to  circuit — jurisdiction 270 

By  county  court,  and  vice  versa,  N.  D 275 

Certiorari. 

When  lies,  adequate  legal  remedy,  appeal 155,  234,  318 

Against  county  comVs,  from  supreme  court 192 

Restitution — order  not  in  a  proceeding — party 193,  252 

Judgment  on  appeal,  where  entered 252 

For  diminution  of  record,  motion  for 440 

Challenges. 

See,  Jurors,  Jury. 

In  civil  cases,  circuit  and  dist.  court 9-12 

Who  may  exercise  right  of • 9 

Peremptory,  or  for  cause 9 

For  cause 9-10 

Immaterial  error  in  ruling  on 145 

Court  tries 11 

In  county  courts .* 272,  276 

In  justice's  courts 310,  323,  336,  346 

In  criminal  cases,  generally 358-371 

Who  join  in — ^to  panel,  grounds 359-362 

To  individual  juror,  nature,  when  taken 362 

Order  of  making — exhausting 262-3 

Peremptory,  defendant's,  state's 36.3-6 

For  cause,  classed,  grounds,  bias- .365-8 

Implied  bias,  grounds  specified 366-8 

Actual  bias,  grounds  specified 366 

Exception  to,  court  tries,  witnesses  on 369-70 

Order  of  taking,  for  cause,  pei'emptory 370-1 

Chambers. 

See,  Judge,  Order,  Appeal. 

Power  of  judge  at,  to  issue  mandamus 6 

Order  in,  no  appeal  from 243 

What  order  of  district  judge  is  not,  "judge" 242 

Order  reciting  "done  in  chambers,"  judge's  order  237 

Change  of  Venue. 

See  Venue. 

Charge  to  Jury. 

See  Instructions. 

Circuit  Court. 

See,  Court,  Trial,  New  Trial,  Appeal. 
Citation. 

See  Probate  Court. 

In  Error — service,  time  of 439 

Under  supreme  court  rules 492 

City. 

Exempted  from  giving  appeal  bond 215 

Claim  and  Delivery. 

Directing  verdict  in 20 


INDEX.  533 

When  jury  find  value,  and  damag-es,  in 39,  40,  114,  172 

When  jury  find  value,  of  parly's  interest 40 

Nature  of  action  in. 41 

What  possession  necessary,  in 41,  88,  89,  134 

General  verdict  in,  determines  what 42,  110 

Ownership,  in 42-44,89,101-2 

General  denial,  in — defendants'  possession 48,  119 

Verdict  neither  general  nor  special 114 

Plea  of  property  in,  judgment 120,  134 

Attachment,  sale  of  property  under,  defense 143-4 

Verdict  in,  justices'  court 338 

Stay  of  execution  in,  in  justices'  court 317,  341 

Clerh. 

Of  circuit,  district  court,  duties  as  to  jury  ballots 9,  354-7 

Calls  names  of  jurors  on  return  of  verdict 29 

Reads  verdict,  in  civil  action 30 

Courts  findings  filed  with 51 

Bill  of  exceptions,  statement,  filed  with 69,  70 

Notice  of  appeal  served  on 204 

Certifies  and  sends  up  appeal  transcript 210 

Sends  transcript,  indictment,  to  other  county 393 

May  require  fees  paid  before  sending- 211 

Fees  of,  in  county  court,  S.  D.,  same  as  circuit 266 

Authority  of  to  grant  citations,  etc. — certified  case 270 

Transcript  from  probate,  county  court,  to,  appeal 285 

Dist.,  notifies  justice  of  appeal 343 

Inquires  of  jury  as  to  verdict,  criminal  action 405 

Records  verdict,  criminal  action 413 

Enters  orders  deemed  excepted  to 417 

Notice  of  appeal  filed  with,  criminal  action 435 

Sends  transcript,  or  writ  of  error,  up  on  appeal,  etc 438 

Certifies  that  bail  given,  on  criminal  appeal 440 

Of  supreme  court,  sends  remittitur  down 251,  498-9 

Of  circuit  court,  power  of,  certified  case 270 

Further  return  by — order  for .519 

Adjourns  term  of  supreme  court,  N.  D 257 

Issues  citation  in  error 489 

Of  supreme  court,  under  rules 448-452 

Residence  of — deputy — duties — records 448-50 

Constitutional  provisions  relating  to — statutes 449-50 

Duties  of,  decisions,  remittitur 449-502 

Administers  oaths — copy  of  syllabus. '. 450 

Fees  of,  deposit — additional,  refund.    450-2 

Salary,  per  diem,  mileage  of  (N.  D.) — statement 452 

Issues  citation  to  respondent 455-6 

Certificate  of,  to  rules 519  20 

Code  of  Ciuil  Procedure. 

Governs  practice  in  county  courts 266,  273-4 

How  far  applicable  in  justice's  court 306,  319 

Code  of  Criminal  Procedure. 

Governs  proceedings  in  county  court,  N.  D 273-4 

Cohabitation. 

See,  Bigamy 397 

Color  of  Office. 

Acts  done  under,  valid  as  to  whom 116 

Commitment. 

Appeal  bond  directing,  county  court 283 

For  higher  offense,  justice  court 321 


534  INDEX. 

Of  defendant,  on  appearance  for  trial 400 

On  verdict  of  guilty 414 

Complaint 

As  related  to  error  of  law — new  trial 116-119 

For  negligence 116-17 

For  taking  water  from  spring 117,  196 

On  insurance  policy — two  causes  of  action 117 

Allegation  of  value,  in 117 

Election  contest — necessary  allegations 118 

Against  unincorporated  association 118 

Against  partners — parties  in 118 

Defective,  waiver  of  objection  to 118 

Amendment  of  on  trial — after  judgment 119,  241 

Attachment  proceedings  no  part  of 119 

General  objection  to  evidence  under  waiver 121-2 

Dismissal  of — indefinite— election  under 7,  241,  267 

For  order  of  arrest 196 

Concurrence. 

Of  supreme  judges  in  judgment 258 

Conflicting  Abstracts. 

See  Abstracts 482,  486,  489 

Consideration. 

For  extension  of  note 127 

For  settlement  of  dispute 105 

Conspiracy. 

Proof  of— overt  act 387 

Constitutional  Provisions. 

Jury,  right  to  trial  by,  civil  action 4 

Jury,  right  to  trial  by,  criminal  action 357-8 

Supreme  court,  jurisdiction  and  power  of 189-90 

County  court,  S,  D.,  character  and  jurisdiction  of 263 

Information,  prosecution  by,  S.  D. — preliminary  examination 268 

Defendant,  speedy  trial,  ete. 374 

Twice  in  jeopardy  385 

Clerks  of  supreme  court 448-9 

As  to  appeal,  right  of 189-90 

Treason,  witnesses  to  overt  act,  confession,  N.  D 387 

Contempt. 

Order  in,  special  proceeding,  appeal 237 

Writ  of  error  to  review  judgment  in 432 

Continuance. 

Refusing  application  for — new  trial 84 

In  county  court 276-7,  280 

In  probate  court ,. .  .289 

In  justice's  court,  grounds,  procedure 302-4,  323,  330-2 

Motions  for,  under  supreme  court  rules 513-14,  496 

Contract. 

See,  Evidence,  Agency,  Sales. 

Illegal,  findings  as  to,  sustained ' 90 

Equity  contract,  plaintiff's  theory,  proof 104 

For  services,  evidence  of  value,  theory 117,  197 

Illegality  of,  must  bo  pleaded 121 

Parol  evidence  to  vary  written 127 

Receipt  as,  admissible  to  show 127-9,  158 

Unauthorized,  as  to  boundary  survey '. 158 

Rescission  of,  restoring  status  quo 159 

Offer  of,  too  late,  statute  of  limitations.. 159 


INDEX.  535 

Of  agency — authority— sub-agent — instructions 159-160 

Of  sales — warranty — price — delivery 161-2,  165 

Tn  school  bonds,  consideration  for 1R4, 


Corporation. 

See,  Public  Corporation,  Municipal  Corporation,  Contract. 

Service  on,  managing  agent 198 

Stock  of,  control,  public  policy 202 

Illegal  contract  of,  findings  sustained 90 

Pledge  of  notes  by,  re-pledge  by  officer,  indorsement,  damMgfs 162 

Discharge  of  mortgage  by,  securities  in  exchange,  bank  officers 163 

Corporate  assets,  speculation  by  director 165 

Corporate  interests,  action  protecting,  plaiiititf'ri 142 


iypewriiieu — uuwriiieu  ruie,  o.  u 49/ 

Coroner. 

Interested  in  case,  county  court,  objeqtion  to 272 

Costs. 

See,  Taxation  of  Costs,  Fees,  Terms,  Clerk,  Undertaking,  Appeal. 

Taxation  of,  unnecessary  to  appeal 209 

Respondent  i*ecovers  expenses  as,  bringing  up  transcript 211 

Jury  fee  as,  county  court,  S.  D 272 

Of  appeal,  probate  to  circuit,  dist.  court 287,  298,  300 

Circuit  clerk  receives,  on  filing  appeal  from  justice .320 

On  acquittal  of  defendant,  justice  court 326 

Of  additional  abstract,  when  disallowed 487 

Of  voluminous  brief,  when  disallowed 491 

Of  briefs  and  abstracts — compliance  with  rules 492-3,  505 

On  rehearing,  supreme  court 501,  505 

Affi rmance,  reversal,  in  part,  costs  on .' 505 

Taxation  of  in  supreme  court,  rules 502-6 

Reporter's  transcript,  allowance  of,  for 504 

For  making  "case,"  bill  of  exceptions 504 

To  respondent,  on  merits,  after  dismissal 505 

Damages,  ten  per  cent.,  delay,  when  allowed 505 

Appeal  from  taxation  of,  procedure ^ 503-4 

Counsel. 

See,  Attorney,  Argument. 

Argument  of  to  jury,  civil  cases — order  of .13 

Misconduct  of  adverse,  error 145-6 

Freedom  of  speech  of,  before  jury 79 

Neglect  of,  opening  judgment  for 151 

Assignment  of,  in  county  court 279 

Restriction  of,  in  ci-imiual  cases 383,  444 

Remarks  of.  criminal  case — discretion 428 

Number  ot,  argument  in  supreme  court, 493 

Counterclainf}. 

See,  Pleading,  Answer. 
In  replevin,  survives  to  administrator 120 


536  INDEX. 

For  margins,  gambling  commissions 158 

A  nd  defense,  same  facts 197 

County. 

Ex«^mpted  from  giving  appeal  bond 115 

County  Commissioners. 

Fees  of,  per  diem,  mileage — instruction 377 

Must  provide  jury  with  furniture,  etc .- 401 

Writ  of  certiorari  against,  when  lies 192 

County  Court. 

See  Probate  Court 280-8 

In  South  Dakota ; 260-73 

Of  record,  seal,  style 260 

Jurisdiction,  common  law,  original,  concurrent 261-3,  266 

Constitutional  provisions — bastardy 263-4 

Criminal  cases,  writs,  concurrent  appellate 264 

Power  of  on  appeal,  on  law 264-5 

New  trial  in,  on  bill  or  case 265 

Appeal  to  circuit  court  from — proviso 265 

Judgment  in,  on  appeal  from  justice ', 265 

Appeal  to  supreme  court  from,  writ  of  error 265-6 

Process,  procedure,  judgments  in — fees 266 

Prosecution  by  information  in,  procedure 267 

Stationary  provisions,  burglary 268 

Plea  of  guilty  in,  court  trial,  judgment 269 

judge  interested,  certifying  to  circuit 270 

Jurisdiction  of  circuit,  certified  case — clerk 270 

Bias  of  judge — adjoining  judge — showing 270-1 

Jury,  venire,  fees,  bailiff 271-2 

Terms  of,  special — always  open  for  what 272 

Stenographer  in 273 

In  North  Dakota 273-280 

Procedure  in — terms — calendar — trial 273-4 

Appeal  to  district  or  supreme — procedure 274-6 

Jurisdiction  of  on  appeal  from  justice,  magistrates 275 

Change  of  venue,  certifying  to  district,  trial 275 

Jury — challenges — new  trial — statement 276 

Summons,  process — witnesses — adjournment 276 

Jurisdiction,  criminal  cases — bail — information 277 

Certification  of  case,  to,  from  district 277-8 

Jury  trial — plea  of  guilty,  trial 278 

Preliminary  examination  unnecessary — waiver 278-9 

Counsel — stands  for  trial,  when — stenographer 278-80 

County  Seat. 

Question  of  Fact — Election  for 90 

Court. 

See  Judge,  Order,   Bill  of  Exceptions,   Trial,  New  Trial,  Instructions, 
Supreme  Court. 

Tries  what  issues 3 

Jurisdiction  of,  at  terms 6 

Tries  challenges 11 

In  criminal  cases 369 

Open  for  what  purposes,  jury  out 1 29 

What  order  presumably  made  by 234 

Decides  law  in  criminal  cases 381  -2 

Advises  acquittal,  when 382,  394-5 

Appeal  from  what  order  of,  etc.,  not  duplicity 612 

Court  Reporter. 

See  Stenographer, 


INDEX.  537 

Court  Stenographer. 

See,  Stenographer. 

Couenant. 

See,  Warranty. 

Crime. 

See,  Offense,  Verdict,  Former  Conviction,  Former  Acquittal,  Plea. 

Degree  of,  when  jury  must  find 408-9 

Intoxication,  how  far  an  excuse  for 379 

Cross-examination. 

See,  Witness. 

Of  defendant,  scope  of — rule  of 378,  386-7 

Of  accomplice — latitude  of 389 

Cumulative  Evidence. 

See,  Evidence. 
New  trial 84 

Custom. 

Cashier's  authority 160 

Damages. 

Measures  of — instructions  as  to 22 

When  jui-y  must  find  amount  of 39 

Excessive,  ground  for  new  trial 78,  85 

Consequential — new  trial 85 

Aggravation  of,  new  trial 85 

Negligence  -  damages  arising  from^new  trial 95-103 

Reference  to  assess — remand  to  jury 230,  259-60 

Ten  per  cent,  as  costs,  on  appeal s  505 

Contract  as  measure  of 169 

On  appeal  bond,    probate  court,  dis-tribution  of 284 

Day. 

See  Calendar,  Causes,  Tinie,  Term 494 

Deatti. 

Sentence  of —new  trial,  application  for 431 

Of  supreme  judge,  no  reargument  consequent  upon 500 

On  indictment  for,  three  counsel  argue  case 383 

Conscientious  scruples  of  juror,  offense,  punishable  with 367 

Juror  having  served  on  jury,  inquiring  into,  of  deceased 367 

Deceit. 

See  Frafud,  Warranty,  Representations,  Worth,  Discovery  of  Truth 
148,  170-1 

Decision. 

What  final,  is  appealable 5 

On  trial  by  court,  when  given 46  7 

Filing  of,  mandatory 47 

Waiver  of 47 

Judgment  on ,  entered 49 

Notice  of  entry,  whether  necessary 51 

Of  supreme  court,  concurrence  in,  filing 258-9 

Review  of,  on  fact  or  law,  on  appeal 244,*250 

In  probate  court  N .  D 290 

On  appeal,  county  to  circuit  court 265 

On  appeal,  probate  to  circuit,  dist.  court 285,  301 

Of  supreme  court.  To  be  in  writing 259,  502 

Federal  precedent  for 378 

What  excepted  to,  criminal  cases 415,  423 

What  reviewable  on  writ  of  error 433 

On  court  trial  "involves  the  merits" 459 

34i— T  P 


538  INDEX. 


Presumption  as  to,  where  none  of  record 460 

Remittitur  held  on  filing  of,  how  long 498-9 

Declarations. 

See,  Evidence. 

Of  deceased,  when  admissible oS() 

Of  wife  of  defendant— U.  S.  rule 38G 

Decree. 

See  Judgment 
Stay,  as  to,  probate  court,  appeal  to  district 28t-5,  296 

Defendant. 

See,  Discharge  of  Defendant,   Verdict,    Acquittal,   Conviction,   Plea 
Party. 

Gives  bail,  in  county  court 269,  277 

Plea  of,  in  county  court , 209,  278 

In  justice's  court 321,  345 

Refusal  of  to  plead,  procedure 345 

Present  at  trial 323,  346 

Several — justice's  court 325 

Informed  of  right  of  appeal 348 

Present,  on  trial  for  felony 3.52 

On  receipt  of  verdict  for  felony 405 

Not  on  motion  to  quash 405 

Punishment  of  not  increased,  appeal  by  state 447 

Former  imprisonment  of,  term  of  deducted  when 448 

Right  of  to  jury  trial — waiver,  county  court 278 

In  justice's  court 323,  345 

In  circuit  and  district  courts 351-2 

Constitutional  provisions  relative  to ' 357 

When  entitled  to  acquittal — discharge 383-4 

Witness  in  his  own  behalf 384 

Cross-examination  of,  scope — rule  of 378,  386 

Detained  for  requisition — jurisdiction 392 

For  new  indictment 394,  413 

When  held  for  offense,  another  county 392-4 

When  discharged  on  such  proceeding 393-4 

Re-arrest  of,  trial  in  another  county 394 

Burden  of  proof  on,  in  murder,  when 397 

Committal  of,  on  appearance  for  trial 400 

Insane,  form  of  verdict  finding < 406 

Discharge  of,  on  verdict  of  not  guilty *.4]3 

Remand  of,  on  verdict  of  guilty 414 

Appearance  of  in  supreme  court,  unnecessary 444,  464 

Poverty  of,  printed  papers  on  appeal  unnecessary 491 

Defense. 

See,  Defendant,  Answer,  Plea,  Trial,  Counterclaim. 

Opening  of,  criminal  cases 371 

Of  justification,  homicide 376 

Of  self-defense,  burden  of  proof 386 

Of  .former  acquittal,  once  in  jeopardy 391 

Of  former  conviction  or  acquittal,  when  a  bar 400 

Of  former  conviction,  when  a  nullity 380 

Not  good,  on  reversal  for  error ..440 

Degree. 

Of  crime,  when  jury  must  find  408-9 

Doubt  as  to,  conviction  on  lowest 383 

Any  included  in  charge,  found 409 

Delay. 

See,  Appeal,  Time. 


INDEX.  539 

Dismissal  of  appeal  for 508-9 

When  mere,  not  good  ground  for 509 

Ton  per  cent,  damages  for,  on  appeal 508 

Demand. 

See,  Jury,  New  Trial,  Complaint. 

Before  suit,  conversion — mortgagee 18,  141 

Before  suit,  mechanic's  lien  claim 143 

Before  suit,  against  administrator,  mortgage 198 

For  new  trial,  appeal  from  justice's  court 312,  315 

Demurrer. 

Frivolous — action  on  bail  bond 120 

Order  sustaining,  to  answer,  no  judgment,  no  appeal 239 

Order  sustaining,  to  answer,  mandamus,  nonappealable 243 

Deposit. 

See,  Money,  Undertaking,  Appeal. 

In  lien  of  bail — when  refunded  to  defendant 393 

On  appeal,  to  supreme  court,  generally 215 

On  appeal,  justice's  court 316,  342,  349-50 

On  a[)peal  from  contempt  order,  probate  court 292 

By  appellant,  with  supreme  court  clerk 450-1 

Depositions. 

See,  Evidence 125-7 

Notice  of  taking — suppression  of 127 

In  probate  court 290 

In  justice's  court,  on  postponement 303,  331 

Deputy. 

Of  clerk  of  supreme  court,  duties  of ...  .448-9 

Detinue. 

Distinction  between  and  replevin,  abolished 41 

Diligence. 

See,  Delay 508 

Directing  Verdict. 

See,  Verdict,  Negligence 17,  99,  135 

Directed,  is  court's  ruling  on  law 101 

Discharge  of  Defendant. 

See,  Defendant,  Verdict.  Acquittal. 

To  testify  for  state '. 384 

Is  acquittal  for  what  offenses .384 

On  acquittal,  justice's  court 326 

In  circuit,  district  court 413 

On  failure  to  prosecute  in  other  county 393 

Not  on  reversal — once  in  jeopardy 425 

From  custody,  on  appeal  to  supreme  court 440-1,  446 

Discontinuance. 

See,  Dismissal. 

In  absence  of  defendant — vacation  of  judgment — new  trial 83 

Of  action,  justice's  court 329 

Discretion. 

Abuse  of,  see,  New  Trial 78,  81-3 

What  applicatioTi  for  now  trial  addressed  to,  of  court 86 

Of  judge  in  ruling  upon  juror's  qualifications 11 

Error  of  law  does  not  involve 152 

Question  of  delay  is  addressed  to,  of  court 185 

Motion  for  new  trial,  newly  discovered  evidence  addressed  to 48 

Order  discharging  receiver  is  in,  of  court 239 

Dismissal. 

See,  Discontinuance,  Nonsuit,  Appeal 243 


540  INDEX. 


Of  complaint,  when  taken — appeal 7,  194,  241 ,  243 

Of  case,  not  on  appeal 7 

Effect  of  dlsmissfil 7,  8 

Motion  for,  at  close  of  plaintiff's  case,  waiver 147 

Of  appeal,  supreme  court 506-13 

No,  of  appeal,  criminal  cases 32Si),  350 

Of  appeal  after  arerument — costs  on 505 

Dismissal  of  Appeal. 

See,  Appeal,  Dismissal,  Affirmance. 

What  order  for,  from  justice's  court,  is  appealable 207 

Is  affirmance  of  judgment  below 287,  298,  518 

Order  refusing  vacation  of,  f f-om  justice,  not  appealable 208 

From  justice's  court 319,  344 

None  in  criminal  cases 328.  350 

In  criminal  cases,  supreme  court 441-2 

In  supreme  court,  under  rules 516-13 

Non-compliance  with  rules,  cause  for 506 

Motion,  notice  of,  returnable  when 506  7,  513 

Grounds  for — notice — undertaking — delay 507  8 

When  appeal  lies — double  appeal 509-1 2 

The  merits,  generally,  transcript,  record 512-13 

Effect  of — same  without  prejudice 518 

Distribution. 

Of  estate,  none,   pending  appeal 285,  296 

Distribution  of  Abstracts. 

See,  Abstracts 495 

Distribution  of  Briefs. 

See,  Briefs 495 

Distribution  of  Calendar. 

See,  Calendar 465 

District  Judge. 

See,  Judge,  Exceptions,  Statement  of  Case. 
To  file  certificate  as  to  decisions — salary .46  7 

Dog  Tax. 

Organized  civil  township,  credit  to  for  amount  of 195 

Double  Appeal. 

See,  Appeal 245 

From  what  order  refusing  new  trial,  is.    51 1 

From  judgment  and  what  order,  is 511-12 

From  what  court  order  is  not 512 

Election. 

Of  courts  under  indictment .• 380,  428 

Of  respondent  to  cause  transcript  sent 463-4 

Election  Ballot. 

See,  Elections. 
Marking  same — in  circle — cross 115 

Entry  of  Judgment. 

See,  Judgment. 

In  what  county — notice  of 5 

After  stay  order,  error 229 

Irregular,  remedy  is  motion  to  vacate 237 

Made  at  close  of  trial,  criminal,  justice's  court 326,  347 

Evidence  of,  abstract  on  appeal 483,  487,  513 

Whether  order  confirming  report,  necessary  to 460 

Error  in  Law. 

See,  New  Trial 114,  174 


INDEX.  541 

Reviewed  above  without  motion  for  new  trial 484 

Erroneously  directing  verdict  upon  evidence,  is 135 

Erroneously  directing  verdict  at  close  of  testimony,  i& 135 

What,  is  not  matter  of  discretion 152 

Estoppel. 

See,  Waiver,  Evidence 132 

By  recitals  in  school  bonds 87 

As  to  competency  of  writing  in  evidenc* 132 

By  former  judgment — notes 148 

Municipal  bonds,  conditions  precedent 164 

To  object  to  want  of  transcript 460 

1\»  object  to  papers  in  abstract 480 

Evidence. 

See,  Witnesses 122-25 

In  bastardy  case — preponderance 23 

Stenographer's  transcript  of,  before  referee — who  pays 68 

Newly  discovered — new  trial 78  84 

Comulative — impeaching — new  trial 84 

Insufficiency  of— new  trial 78,  86-114 

Conflicting — new  trial 93-95 

Of  negligence,  damages — new  trial 95-103 

To  refute  an  inference,  when  admissable 122 

Relevancy  of,  to  issue 121-2 

Records,  copies  of  public — writings 125-6 

Docket  entries — book  memorandum 126-7^ 

Best  only  receivable,  rule  at>  to 125-6 

Ruling  before  former  judge — proof  of  reference 126 

Extension  of  note — instrument  in  evidence,  purpose 127 

Depositions — notice  of  taking — certificate  to 127,  290 

Parol,  to  vary  contract — witness'  signature 127-8 

Notes  executed  on  condition — guaranty 128 

Right  of  way — mutual  mistake 128 

Res  geste — agent—  exclamations  of  pain 129 

Transaction  with  administrator — payment. .129 

Communications — agent — husband — confidential 130 

Expert — opinion — "family  talk" — foreign  attorney 130-1 

Objections  to — waiver  of — estoppel — order  of 131-2 

Offer  of  proof — excluding 131-2 

Presumptive,  of  ability  to  pay  debts 196 

That  judge  charged  orally 380 

As  to  abstract  and  record  on  appeal 478-83,  488 

All  received,  court  trial,  review,  appeal 253 

In  criminal  cases 371 

Rules  of,  criminal  cases 370,  386 

Rebuttal,  by  parties  in 371 

Basis  of  charge  to  jury — grade  of  offense 376 

Handwriting,  expert — reputation 378-9 

Exclusion  of.  injury  must  appear 382 

Reasonable  doubt,  when  acquittal  follows 383 

Declarations — wife — burden  of  proof 386 

Justice's  transcript,  perjury ^ 386 

Of  conspiracy — treason-  -accomplice 387-9 

Of  false  pretense — personating  -seduction • 389-90 

Of  seduction — abortion — higher  offense 390 

Murder,  burden  of  proof — bigamy — forgery 397 

Of  instrument,  in  abstract 479 

Juror's  testimony  inadmissible  to  impeach  verdict 83,  427 

Exceptions. 

See,  Bill  of  Exceptions,  Statement  of  case >  .66,  71-2 


542  INDEX. 


Exception  defined 63 

When  taken 63-4 

What  deemed  excepted  to 64-5 

How  exception  stated — rorm 66-9,  71 

State  of  record 66-7 

Si)ecifications 67-9,  480 

Bill  of,  defined : 68 

To  findings 69 

When  settled 69,  72-4 

Verity  of  bill  of— judge's  duty 70 

On  trial,  mode  of  settlement  of 70-72 

Bill  of,  when  presented  for  settlement 69 

Taken  at  trial,  when  and  how  settled 70  71 

Service  of  draft  of  bill  of 70-71 

Amendments  to  bill 70-71 

Duty  of  judge  in  settlement  of 71 

Extending  time  for  settlement  of 72-73 

Two  methods  of  settlement  of  bill  of 74 

Exceptions  after  judgment 74 

Application  to  supreme  court,  to  prove 75 

First  resort  to  trial  judge 75 

Ex-judge,  settlement  by 76 

Object  of  this  section , 76 

When  trial  court  loses  jurisdiction  to  settle 76-77 

Specifications — when  no  review 137-8 

Assignment  of  error  in — specifications — record 138,  418,  480 

Review  on,  to  findings,  on  appeal — de  novo 155 

Appeal,  what  reviewed  on  without 243-8 

To  challenge  of  juror,  criminal  cases 369 

To  charge  to  jury,  criminal  cases,  filing 373 

To  giving  or  refusing  instructions,  when  taken 23-6 

Statute  commented  on 24-6 

To  findings  of  referee 69,  60,  62,  473 

Omitted  findings,  error 60 

In  criminal  cases 414-24 

To  what  decisions — rights — prejudice 415-6,  423 

What  deemed  excepted  to — entry  of  ruling 417 

When  deemed  abandoned,  or  agreed  to 421 

What  instructions  deemed  excepted  to 423-4 

Excessive  Damages. 

See  New  Trial,  Damages 78,  85-6 

Excuse. 

For  committing  crime,  evidence  reducing  grade,  not 376 

Execution. 

See,  Stay  of  Proceedings. 

Levy  under,  actual  possession .......  1 1 53 

Money  on,  divestiture  of  subject-matter 153 

Void  mortgage,  tender  on  levy , 153 

Judgment  sale,  re-sale  after  redemption 153 

Civil  excution,  coercive  order 153 

Against  person — "judgment  debtor". 1 154,  157,  201-2 

Unauthorized  sale  under,  trespass 154 

From  county  court,  on  appeal  to  it 156-7 

Against  person — causes  of  action,  conversion 201 

Stay  of,  on  appeal  to  supreme  court .216-221 

Stay  of,  on  appeal  by  state,  board,  officer 224-5 

On  appeal  from  order 222-4 

Second  sale  under — liens 234 

Land  sale- under,  confirmation  before  appeal. 511 


INDEX.  543 

Perfecting  appeal  stays 228 

Stay  of,  on  appeal,  justice  to  circuit 319 

On  writ  of  error,  appeal,  to  supreme  court 436-7,  440-1 

Out  of  supreme  court,  form,  enforcement 518 

Exemptions. 

Debtor  to  indicate — wife  of  debtor , 154 

Cannot  be  fradulently  alienated 154 

Homestead,  locus  of  officeholder 155 

Disposition  of,  no  imputation  of  fraud 155 

Exhibits. 

See,  Evidence,  Bill  of  Exceptions. 

Identified  by  trial  judge,  new  trial  Sbove 481-2 

Eye-witness. 

See,  Witness ; 429 

False  Imprisonment. 

See,  Malicious  Prosecution 22 

False  Pretenses. 

Evidence  of,  witnesses 389 

Falsus  in  Uno,  Etc. 

Instruction  as  to. . , 23 

Fees. 

See,  Costs. 

O/  referees 54,  63 

Of  stenographer,  before  referees 63 

For  transcript,  criminal  cases 373 

Of  clerk  for  transcript  to  supreme  court 210-1 

Payment  of,  necessary   to  perfecting  appeal 460 

Of  county  commissioner,  per  diem,  mileage 377 

None,  to  district,  supreme  clerk,  criminal  appeal 438 

Of  clerk  of  supreme  court 450-2 

To  supreme  court  clerk  by  admitted  attorney 514 

Felony. 

See,  Capital  Offenses,  Capital  Cases,  Challenges 364-5 

Defendant  present  at  trial  for 352 

Defendant  present  on  return  of  verdict  for 405 

On  trial  for,  who  reads  indictment  and  plea 371 

Fellow  Servant. 

See  Negligence 168-9 

Filemarh. 

Clerk's,  after  time— appeal  good 321 

Findings. 

What,  support  judgment 5 

Court  directs,  special,  by  jury,  when ; 34 

On  trial  by  court  49 

And  conclusions,  separately  stated 49 

And  conclusioiiB,  unnecessary,  when 48 

Immaterial — foreign  to  issue,  etc 49,  50,  137 

Waiver  of., • 61 

Duty  of  court  to  make 61-2 

Prejjaration  of 52 

Ultimate  facts  found 62 

By  referee 59,  60 

Setting  aside  of — exceptions  to 59,  60,  69 

Omitted,  when  error 60 

Mandatory,  when 60,  137 

They  stand,  when — disputed  question 87,  89,  250 

Under  pleadings,  issues 109 


544  INDEX. 


Insufficiency  of  evidence  to  justify Ill 

Special,  of  negligence,  by  jury 134 

Power  of  referee  to  make—  consent— ^waiver 136-7 

Neglected  issues — inconsistent  findings 136 

Ambiguous — additional — improper  evidence 137 

Failure  to  make,  no  reversal,  when 137 

On  appeal  from  county  court,  N.  D; 300 

Recital  as  to,  in  abstract  of  record 489 

Fine. 

Against  probate  judge,  refusal  to  send  up  transcript 287 

Against  justice,  neglecting  to  send  up  transcript 316,  343,  328 

Of  defendant,  justice's  court ^ 326,  347-8 

Forcible  Entry  and  Detainer. 

Appearance,  pleadings,  continuance,  in .304-6 

Form  of  judgment  in 311 

County  court,  S.  D  ,  no  jurisdiction  in 262 

Possession  in,  undertaking  for  stay 318-9,  312 

Stay  on  appeal  in,  justice's  court 312,  341 

Foreclosure.  \ 

By  advertisement,  certificate,  affidavit — order 157,  238 

Cloud  on  title  through,  void  record 157 

Divestiture  of  title  by,  insured   property 157 

And  revivor  of  former  mortgage — insolvent  guardian 203-4 

Forgery. 

Of  corporation  paper,  to  pass,  proof  of 397-8 

Form. 

See,  Oath,  Verdict,  Findings,  Exceptions. 

Of  order  of  district  judge,  not  optional 242 

Of  verdict,  claim  and  delivery,  justice  court 338 

Of  plea,  i  f  defendant  refuses  to  plead 345 

Of  verdict  on  plea  not  guilty,  justice  court 347 

Of  general  verdict,  upon  various  pleas, 406 

Of  special  verdict,  generally,  criminal  cases 407 

Of  clerk's  transcript  to  supreme  court 458,  461-2 

Of  abstract  of  record  on  appeal , . .  .474-8 

Of  assignment  of  error,  no  particular,  required 466-7 

And  size  of  abstracts  and  briefs  on  appeal 493-3 

Former  Acquittal. 

Plea  of,  when  not  good 391 

Judgment  on  plea  of 407-8 

Former  Action. 

See,  Res  Judicata. 

Former  Conviction. 

See,  Former  Acquittal,  Once  in  Jeopardy. 

Plea  of,  when  a  nullity 380 

Form  of  judgment  on  plea  of 407-8 

On  plea  of,  fact  must  be  found — verdict • 410 

Plea  of  not  good,  on  reversal  for  error ; . . 446 

Former  Jeopardy.  • 

See,  Former  Conviction. 

Former  Verdict 

See,  Verdict. 
No  bar  when 424 

Fraud. 

See,  Deceit. 

Legal,  erection  of  house,  directing  verdict 19 

In  withholding  mortgage  from  record 106 


INDEX.  545 


Fraudulent  transfer,  attachment 133 

Of  taxing  officers,  injunction  for 144 

Representations,  error  dismissing-  action  for  damages  for 148 

In  alienating  exemptions,  cannot  be 154 

False  representations  by  partner,  liability  for 158 

In  statement  to  stranger,   sale,  evidence  of Kil  2 

Freedom  of  Speech. 

In  addressing  jury ; 79 

Fn'uolous  Answer. 

Instances  of,  See  Answer 196-7 

Fuel. 

P\)r  use  of  jury,  county  pays  for 401 

Furniture. 

For  jui-y,  county  commissioners  must  provide 401 

General  Rp.putation. 

Evidence  of,  bawdy  bouse 3-79 

Genuineness  of  Signature. 

When  deemed  admitted  by  defendant 310-11,  339 

Grand  Jury. 

When  criminal  case  submitted  to  another 394 

Juror  having  served  on,  etc.,  challenge 367 

Grounds. 

See,  Motion,  New  Trial. . 

Of  motion  in  supreme  court,  to  be  stated 496 

Guaranty. 

In  agency  contract,  evidence  of  parol  statements 178 

Agency  contract  of,  exhausting  collateral  security 160 

Of  accommodation  paper  by  partner,  firm  not  bound 163 

Of  collection  of  note,  solvency  of  maker 163 

Agency  sales,  notice  of,  parole-offsetting  commissions 165 

Guilt. 

Opinion  of  on  part  of  witness,  cross-examination  as  to 377 

Guilty. 

See,  Plea,  Verdict,  Conviction. 

Habeas  Corpus. 

Supreme  court  grants  writ  of : 190-1 

Fine  by  justice,  imprisonment,  jurisdiction 191 

Appeal  from  proceedings  on — stay 208,  223 

Writ  of,  when  returnable,  supreme  court 258-9 

No  discharge  on  by  perfecting  appeal 223 

Argument  in,  need  not  be  on  printed  papers 517 

Handwriting. 

Expert  testimony  concerning 378 

Comparison  of,  when  improper — federal  precedents 378 

Hearing. 

See,  Argument,  Call  of  Calendar,  Rehearing,  Reargument. 

Of  motion  for  new  trial 183 

On  appeal  from  probate  to  circuit  court 285,  297 

New,  on,  what  evidence  certified  up 286 

Of  causes  on  supreme  court  calendar 294 

At  next  term,  supreme  court  rule.  Insistence 455 

Notice  of,  criminal  cases,  supreme  court 492 

Delay  in  bringing  case  to,  on  appeal  from  justice  court 320 

Distribution  of  abstracts  and  briefs  when  case  called  for 495-6 

Homestead. 

Mortgaged  premises,  foreclosure,  residence  of  husband 87 


546  INDEX. 


Locus  of  office-holder — fraud 155 

Fraud  on  creditors  not  imputtible  to  disix)sition  of 155 

Homicide. 

See,  Murder. 

Defense  of  justification — weapon— presumption 37(5 

Justifiable  or  excusable,  doubt,  burden  of  proof 380 

Impeaching  Evidence. 

Newly  discovered,  new  trial,  must  bo  exceptional  case 84 

Of  juror,  not  admissible  to  impeach  verdict 83,  427 

Imprisonment 

Of  defendant,  justices'  court       325-6,  347-8 

Discharge  on  writ  of  error  when,  forms  part  of  judgment 440-1 

Term  of  Uk)  long,  modifying  sentence 445 

Former  term  of  deducted,  when 448 

Inadvertence. 

When  no  remedy  for,  in  preparing  case 460 

Indictment. 

See,  Information. 

When  for  felony,  defendant  present 352 

Read  to  jury,  by  whom 371 

For  selling  liquors,  sufficiency  of 374 

Refusal  to  quash — omitted  witness 377 

Proof  of  substantial  offense  involved  in 379 

Transcript  of,  to  other  county  when 392-3 

New,  when  found  against  defendant 394,  413 

Election  as  between  counts  of,  selling  whiskey 380,  428 

Verdict,  on  ac-quittal  f~>r  variance  between,  and  proof 406 

Facts  proving  guilt  under,  form  of  judgment -.407  8 

Jury  find  guilty  of  offense  included  in 40f> 

Against  several,  verdict,  judgment  against  some 411 

Information. 

Prosecution  by,  county  courts 267-269,  277-9 

When  for  felony,  defendant  present 352 

Order  for  new,  when  granted 352 

Read  to  jury,  by  whom 371 

Statute  relating  to  prosecution  by  S.  D 372 

Transcript  of,  to  other  county,  when 392-3 

Filing  of  new,  on  discharge  of  defendant  under  insufficient 394 

Verdict,  on  acquittal  for  variance  between  and  proof 406 

Facts  proving  guilt  under,  form  of  judgment 407-8 

Jury  find  guilty  of  offense  included  in 409 

Against  several,  verdict,  judgment,  as  to  some 411 

Injunction. 

Against  sale  of  intoxicating  liquors 115 

To  restrain  tax  collectioii,  invalidity,  fraud 144 

Against  incumbrance,  void  mortgage 145 

Against  municipal  corporation,  nuisance 199 

Appeal  from  order  in — property  in  statu  quo 223,  239 

Undertaking  on  appeal  from  order  in 223 

Innocence. 

Presutr ption  of—  reasonable  doubt 383 

Insane  Defendant. 

Form  of  verdict  finding  him  insane 406 

Insistence. 

See,  Notice  of  Insistence • 452,  455 

Instructions. 

How  given  and  refused,  civil  action 14,15 


INDEX.  547 


Waiver  of  oral 15,  80 

In  civil  actions,  generally 15  iiS 

Submittinjj  facts 16 

Assuming-  facts 16,  133 

Directing-  verdict,  civil  action ..17 

Negligence,  question  for  jury 21 

Other  cases 22 

Order  of  reading 23 

Exceptions  to,  when  taken 24-26 

Presumed  disregard  of — new  trial 94 

Assuming  facts — arbitrary  disregard  of 110-11,  133 

Good  as  a  whole — harmless  error — oral  charge.    132 

Omitted  point  in — redundant — construing  contract 133 

On  sale  order — withdrawing  testimony — conversion 133 

On  fraudulent  transfer — attachment 133 

Changing  language  of  submitted,  error 201 

In  criminal  cases 371-382 

In  writing,  unless— oral — separate  paper 372-3,  375 

Not  as  to  fact — disclosure  as  to 372-3 

Fi  1  ing — when  deemed  excepted  to 373 

Submission  to  counsel,  objections 374 

When  iri-elevant — advising  agreement — statute 375 

Additional— on  Sunday 1 375,  403 

Construing  evidence — advising  verdict 375-7 

Comparing  witnesses — facts  as  basis 375-6 

That  no  evidence  excusing — offense,  grade 376,  379 

Motion  to  advise  jury  that  evidence  insufficient 376 

That  no  evidence  excusing  crime,  when  good 376 

As  to  witnesses  not  named,  etc. — evidence 377-380 

Requisites  of,  n-quest,  signing,  refusal 398 

Advising  what  evidence  to  consider , 398 

Further,  additional,  after  jury  retire 402-3 

And  statement  part  of  record — exceptions 4'23-4 

"Reasonable  doubt,"  defining, approved 429 

Refusal  of  good,  covered  by  general 429 

Setting  them  out  in  abstract  on  appeal 475 

Instrument 

Genuineness  of,  when  admitted" 310-1 

Exhibition  of,  to  party 310 

Insufficiency  of  Evidence. 

See,  New  Trial,  Evidence,  Specifications  of  Error 78,  86-113 

Generally,  on  motion  for  new  trial 86-93 

Conflicting  evidence — ^new  trial 93-5,  100 

Negligence,  damages — new  trial 95-103 

Directing  verdict— new  trial 100-7 

Question  for  jury — new  trial 107-9 

Pleadings,  issues— new  trial 109  10 

Instructions  as  to — new  trial 110-1 

The  record — new  trial 111-2 

Specification  of  particulars 112-3 

When  verdict  not  assailable  for — specifications 179 

Must  specify  particulars  of  in  statement 181 

When  nothing  but,  for  review — no  specifications 182 

Review  on  appeal,  motion  for  new  trial  necessary 246,  484 

On  appeal  from  judgment,  no  review  of,  without  motion  for  new  trial 249 

Assignment  of  error,  abstract,  supreme  court 479 

On  appeal  from  order,  review  of  evidence .•.250 

Assignment  of  error  not  specifying,  entertained,  criminal 467 

"Insufficient  to  justify  decision,"  not  good  specification 469 


548  INDEX. 

Must  specify,  or  motion  for  new  trial  denied 470 

When  question  of,  considered  witliout  specifications. .    470 

Setting-  forth  in  abstract  of  record  on  appeal 475-G 

No  assignment  of,  evidence  not  in  bill — presumption 479 

Insurance. 

Five  risk,  representations 19 

Agency   in  procuring  policy 108 

Increase  of  fire  risk,  use  of  property 104 

Complaint  on  policy,  two  causes  of  action 117 

Waiver  of  notice  of  loss,  proof  of 131-2 

Divestiture  of  title,  as  defense — void  foreclosure 157 

Interest. 

Of  juror  in  event  of  action,  challenge 10 

Of  bailiff,  impartial  one  appointed 272 

Of  county  judge  in  proceeding— certification 270 

Intervention. 

Withdrawal  of  complaint  in,  appeal 241 

Intoxicating  Liquors. 

See,  Intoxication 379 

Enjoininer  sale  of — common  nuisance 115 

"Beer,"  "lager  beer"— judicial  notice  of 107,  382 

Information  for  selling,   allegalftons 269 

Intoxication. 

How  far  an  excuse  or  justification  for  crime 879 

Irregularity. 

See,  New  Trial 78-81 

In  criminal  case — jury,  papers— instructions 402-8 

Delivery  of  verdict  to  judge  is  a  fatal 29 

In  entry  of  judgment,  motion  to  vacate 237 

In  service  of  appeal  notice,  supreme  court .^ 454 

If  any,  entering  judgment  without  confirming' re  port — waiver 62 

Separation  of  jury,  when  a  harmless 399 

Waiver  of,  in  appeal  notice,  by  voluntary  apjiearance 454 

In  title  of  case,  does  not  vitiate  appeal  notice 454 

Nor  omission  of  year  in  appeal  notice 454 

In  caption  of  apjieal  notice,  when  not  fatal 507 

Issue. 

Origin  of,  circuit,  district  court 1 

In  probate  court,  N.  D 291 

In  justices'  court 307-8,  339 

Order  of  trial  of 2,  290 

By  whom  triable 3 

Evidence  under^new  trial^stipulation 109-10,  1 19 

Pleadings,  evidence,  relevancy,  as  related  to . .  .121-2 

Immaterial  evidence  under,  raised  by  answer 122 

Neglected,  in  making  referee's  findings 136 

Res  judicata,  as  related  to 148 

Of  fact,  sent  to  jury  from  supreme  court 259 

Of  fact  joined  in  probate  court,  tried  by  court 266,  290 

New  trial  is  re-examination  of 424 

Issue  of  Fact 

Arises  on  what 2 

Tried  before  single  judge 5 

Tried  at  what  term " 5 

New  trial  is  re-examination  of 77 

Sent* to  district  court,  from  supreme 259-60 

In  probate  court,  origin  of 291 

In  justices'  court,  arise  upon  what 808,  339 


INDEX.  549 


In  criminal  cases,  arises  upon  what 351 

Issue  of  Law. 

A  rises  on  wliat 2 

Tried  at  what  term 5 

Tried  befoi'e  whom 5 

Tried  in  what  county 5 

Judgment  on,  procedure 53 

In  justices'  court 308,  359 

Jeopardy. 

See,  Once  in  Jeopardy,  Former  Jeopardy,  etc. 

Judge. 

See,  Order. 

Issue  of  law  tried  by 3 

Trial  of  issue  of  fact  before  single 5 

Verdict  delivered  to — irregular 29 

Instructions  of  to  jury 14-5,  372 

Circuit,  dist.,  signs  bill  of  exceptions 69,  71-2 

Bill  or  statement  delivered  to 70,  71-2,  176-7 

Exceptions  presented  to 74 

Ex-judge  may  settle  bill,  statement 76 

Ruling  before  foi'mer 126 

Of  other  circuit,  at  adjourned  term 145 

May  extend  time  for  settlement  of  bill  or  statement 185 

Settlement  of  bill  by  after  appeal — omitted  evidence 187 

Certificate  of  to  record,  as  to  evidence 213 

Power  of  supreme,  stay,  writs 218,  258-9 

At  chambers,  injunction,  appeal,  stay 224,  242-3 

Order  of  for  annexing  evidence  to  judgment  roll — "merits" 245 

Of  district,  to  execute  writ  from  supreme 258-9 

Of  county  court,  S.  D.,  interested  or  related 270 

Pi.xes  bail  of  defendant 269 

Bias  or  prejudice,  of  county 270 

Absence  of  county,  adjournment  because  of 276 

County,  certifies  transcript  on  appeal — compelling 297 

Settles  and  signs  bill  or  statement,  criminal  cases 419-20 

District,  certificate  of  to  transcript,  N.  D.  court  rule 460-1 

To  judgment  roll — to  be  in  record 439,  472 

Decision  of,  not  that  of  court — abstract 610 

Certificate  of,  to  bill  of  exceptions,  on  writ  of  error 439 

Certificate  of,  of  supreme  court,  to  judgment  roll 439 

Death  of  supreme,  no  reargument  on 600 

Decision  of,  when  not  court  judgment 510 

Wliat  valid  order  of,  not  appealable 610 

Judge  at  Chambers. 

See,  Chambers,  Judge,  Order • 224,  242  3 

Judgment. 

See,  Judgment  Roll,  Order. 

In  what  county  entered 5 

Notice  of  entry  of 6 

When  taken  in  absence  of  adverse  party 7,  321 

On  trial  of  i  ssue  of  la w 63 

Setting  aside—ii-regularity ,  appeal 82,  234,  321 

Eor  legal  taxes,  injun(!tion  suit 145 

Default  money,  application  for 149,  201,  234 

Confessed,  corporation,  trust  fund,  creditors 150,  237,  H26,  347 

Entry  of,  stay— order  for  entry 150,  229 

Need  not  direct  attachment  sale 150 

Self-executing,  election  contest 160 


550  INDEX. 


Correctness  of  presumed — omissions 150-1 

Setting  aside — stipulation  for 151,  201 

For  neglo'jt  of  counsel 151 

Modifying  in  part,  alimony 151 

New,  on  apj>eal  to  county  court 156-7 

Entry  of,  evidence  of,  abstract  on  appeal 483,  487,  513 

Whether  order  confirming  report  necessary  to 400 

Pinal,  what  order  is,  appeal 207,  234,  241 

Appealable,  though  costs  not  taxed 2(K) 

Payment  of,  on  affirmance 230 

Order,  review  of  on  api^eal  from 240 

Refusing  applictition  for,  appeal 242 

Void,  reversed  on  appeal — jurisdiction 248,  252 

Remand  for  entry  below 253 

Final,  on  new  trial,  supreme  court ; 254 

Non-concurrence  in,  rehearing 258 

What  may  be  appealed  from  to  supreme  court 180-90 

"Any  judgment,"  appeal  from — taxation  of  costs 194 

Vacation  of — process,  affidavits — default 201 

Appeal  before  entry  of — abstracts 209 

Appeal  from  on  judgment  roll,  what  reviewed 480 

Appeal  from,  alone,  scope  of  review 209 

Same,  without  exceptions 243,  245,  250,  480 

Modification  of,  payment  under,  extending  time 229 

Irregular  entry  of,  remedy,  motion  to  vacate 237 

What  appeals  from,  and  orders,  are  or  not  double 245,  511-2 

Motion  for  new  trial  after,   appeal  from 245 

Entered  before  motion  for  new  trial — review 246 

Findings,  when  presumed  justified  on  appeal  from 250 

Accepting  benefit  under,  waiver  of  appeal  by 251 

Void,  reversed  by  court  without  point  being  raised 252 

Remand  for  below,  under  law  of  1891  N.  D 252 

Supreme  court  executes  its 257-8 

Concurrence  of  judges  in  pronouncing 258 

County  court  sets  aside  its  own,  S.  D 265 

What  is  a,  of  county  court,  on  appeal 265,  266-7 

From  what,  of  probate  court,  appeals  lie 281 

On  apjjeal  from  probate  court,  enforced  below 288 

Review  of,  modification,  suspension,  appeal  from  justice  to  county  court 

, 319,344 

On,  plea  or  conviction,  justice  court — entry 325-6,  347 

Enforcement  of  below,  after  appeal 328-9,  350 

Of  acquittal,  or  conviction,  dischartje  of  defendant,  on 347 

On  special  verdict,  criminal,  various  plejis 407-8 

On  verdict  of  guilty  not  conforming  to  law 411-12 

Of  acquittal  on  informsU  verdict 412-13 

Discharge  of  defendant  on,  of  susquittal '. 413 

From  what,  in  criminal  cases,  appeals  lie 432-3 

Further  execution  of  suspended,  when,  criminal  cases 439 

Stay  of  execution  on,  various  forms  of 216-223 

In  circuit,  dist.  court,  appeal  from  justice 320,  350 

Motion  in  arrest  of,  not  in  justice  court 339 

In  contempt,  reviewable  on  writ  of  error 432 

Execution  of  stayed,  on  giving  bail 440-1 

Notice  of  applicjition  for,  when  waived 460 

In  supreme  court,  criminal  procedure 444-8 

What  errors  disregarded — power  of  reversal,  etc 444-5 

Reversal,  affirmance,  modification 445-6 

Affirmance,  original  enforced,  remittitur 446-7 


INDEX,  551 


Entry  of,  conflicting  abstracts  as  to 483,  487,  513 

Costs,  insertion  of  in,  in  supreme  court 502 

Appeal  from,  when  too  late 509 

Must  be  one,  on  order  dismissing  appeal  from  county  court^appeal. .  ..510 

Judgment  Roll. 

Summons  as  part  of — appearance 139 

Appeal  from,  review 248,  480,  513 

Copy  of  foreign,  allegations  as  to,  in  complaint 121 

What  transcript  annexed  to,  not  part  of 188 

Only  the,  is  a  certified  record. . .    212 

Charge  to  jury,  when  not  part  of — presumption 380 

What  for  review  on — what  is — informal  papers 458-60,  463,  480 

Waiver  of  court  findings,  not  part  of 459 

Papers  in,  arrangement,  supreme  court 466 

Certificate  of  judge  to,  on  appeal 439,  472 

Only  that  a  certified  record ." 212 

To  contain  what — supreme  court  rule 472-3 

Errors  on— no  bill  settled,  immaterial .513 

Judicial  Notice. 

See  Jurisdiction. 

Of  Inger  beer  as  intoxicant,  of  "beer" 107,  382 

Of  jurisdiction  of  inferior  court  379 

Presumption  of,  as  to  superior  court ^ 141 

By  supreme  court,  of  organization,  jurisdiction,  judges  of  inferior 261 

Jurisdiction. 

See,  Appellate  Jurisdiction.  ^ 

Of  court  at  terms - .  ' 6 

Of  superior  courts,  presumption 141 

On  hal)eas  corpus — removal  of  cause 141 

Of  county  courts — and  on  appeal 261-7,  273-7,  141 

Of  supreme  court — primarily  appellate 189  90 

Review  of  by  habeas  corpus — justice's  proceeding 191 

Of  justice's  court 306-7 

In  mandamus,  constitution  enlarges,  of  supreme  court 191 

Over  parties,  service  in  other  county 266 

To  amend  appeal  bond,  when  lost — dismissal 313-4 

Of  justice  of  pe!W!e,  limited  by  statute 302,  306 

After  change  of  venue 307 

Jurisdictional  steps,  on  appeal  from 312 

Dismissal  of  appeal  for  want  of,  no  appeal  from  order 320 

To  amend  appeal  bond,  when  circuit  court  loses 313 

No,  over  offense — when  jury  discharged 392 

Of  person,  when  respondent  cannot  aeny 315 

What  appearances  not  waiver  of  objection  to 316 

Of  supreme  court,  on  writ  of  error,  appeal,  ceases  when 447 

Appellate,  depends  on  compliance  with  statute— must  appear 453,  204-5 

Does  not  attach  until  clerk's  fees  paid 460 

Of  supreme  court,  lost  on  remand 500-1 

Motion  for  new  trial  not  jurisdictional— appeal 484 

Of  supreme  (^oui-t  lost  on  remittitur  going  down 501 

Servfce  of  notice  of  appral  is  jurisdictional 507 

Order  without,  refusing  vacation  of  order,  appealable 509 

Juror. 

See,  Jury. 

In  civil  cases,  ballots  of "^ 

Clerk  draws  ballots  of,  when ^ 

Who  may  challenge -^ 

Oath  of,  civil  action 1* 


552  INDEX. 


Sick  juror,  civil  action 28 

Testimony  of,  setting  aside  verdict 83 

Sicic,  in  criminal  ease,  discharge  of  jury 364,  396,  403 

Attachment  for  absent,  criminal  cases 354 

In  criminal  cases,  drawing,  challenging 353-71 

Irregularity  of,  what  not  reversible,  buying  goods,  etc 399 

May  testify  to  fact  within  knowledge 395 

Testimony  of,  not  to  impeach  verdict 83,  427 

Jury. 

See,  Jurors. 

In  civil  cases,  what  issues  triable  by 3 

Trial  by.  constitutional  provisions 4,  357 

Consent  to  less  than  twelve 4,  309 

Waiver  of 4,  308 

Clerk  draws  ballots  of,  when 9 

View  by,  civil  actions '. 26 

Admonishing  of 27 

Take  what  papers,  civil  action 27 

Retirement  of,  conduct  of 27  8 

Disagreement  of 28 

In  justices'  court 325,  339 

Polling  of,  civil  action 29-30,  31 

Three-fourths  of  rendev  verdict,  when 30 

Find  amount  of  recovery,  when .^  .39 

Find  value  of  property,  and  damages,  when 39 

Horw  waived 45,  308 

Mingling  with — irregularity = 80 

Separation  of 28,  81 

Irregularities  of — new  trial .78-81 

Misconduct  of— new  trial 78,  83-4 

Question  for,  waiver 146 

In  county  court 271-2,  276 

In  justices'  court 309,  3234,  345  6 

In  criminal  cases,  generally 353-71 

Formation  of—  Isallots — summons — oath 353  8 

Challenging,  grounds,  trial  of,  exception 358-71 

Right  to  trial  by— constitutions 357-8 

Determine  law  and  fact 381-2 

Discharge  of — jurisdiction — olTense 392 

Not  bound  by  advice  to  acquit 394 

May  view  place — juror  a  witntjss 395 

Custody,  conduct,  officer's  oath,  admonition 395-6 

Sick  juror,  discharge  of 396* 

After  charge  to — separation — communications 399-400,  .428 

Conduct  of  after  cause  submitted 401-4 

Room,  food,  take  papers,  disagreement 401-3 

Sick  juror — discharge,  re-trial,  adjournments 403-4 

Taking  justice's  transcript  —further  instructions 402  3 

Agreement  cf,  procedure  on,  polling  of 405-13 

Receiving  evidence  out  of  court,  new  trial 425 

Separation  of  without  leave  of  court,  new  trial 425,  428 

Verdict  of  decided  by  lot,  new  trial 425 

Misdirection  of  by  court,  new  trial 426 

Remarks  of  counsel  in  argument  to — discretion 428 

Justice  of  Supreme  Court. 

See,  Judge,  Court,  Order. 

Adjourns  term  when  quorum  not  present 257-8 

Majority  of,  appoint  special  term 256 

Certificate  of,  to  bill  of  exceptions,  in  error 439 


INDEX.  553 

Announces  and  files  opinions 258 

Issues  writ,  process,  makes  returnable,  etc 259,  456 

Makes  certificate  of  probable  cause 437 

Furnished  with  copy  of  criminal  record 443 

Chief,  application  to  for  writ  of  error 456 

Death  of,  necessitates  no  reargument .500 

Justice  of  the  Peace. 

See,  Justices'  Court. 

Sickness  of,  procedure 305-6,  330 

Transmits  record  on  appeal,  contents  of 315-6,  343 

In  criminal  cases 328,  350 

Justices'  Court.  ■ 

See  Justice  of  the  Peace,  Appeal. 

Jurisdiction  of  S.  D. — code  civil  procedure 306-7 

Trial  in,  commencement  of 302,  329,  333-7 

Postponement  of,  undertaking — depositions 302-4,  330-2 

Of  forcible  entry  and  detainer  in 304-5,  338 

Sickness  of  j  ustice,  procedure  ' 305-6,  330 

Place  of — change,  proceedings  on 306-7,  332-3 

Jury,  waiver  of,  venire,  fees 308-9,  334-7 

Challenges — oath — account — evidence 310-11.  336 

Genuineness  of  signature,  admission , 310,  339-40 

Issues  in,  origin,  law,  fact 308,  333-4 

Appeal  to  circuit,  dist.  court,  from 311-321,  340-4 

Who  may — how — notice 311-13 

On  law  alone,  statement,  review — for  new  trial 314-15 

Transcript — neglect — benefit  of  objections ^ 316-17,  313 

Undertaking,  stay — sureties,  justification 316-19 

Review  on — new  trial — dismissal — notice  of  trial 319-21 

Dismissal  of , 315,  328-9,  344,  350 

Criminal  proceedings  in 321-326,  345-351 

Plea,  committal,  court  trial — venue,  change  of 321-2,  345 

Postponement — jury  trial,  challenges,  oath 322-4,  346 

Court  decides — charge — verdict — retrial,  disagreement 324  5,  346-7 

Judgment,  entry,  fine — acquittal,  discharge 324-5,  347-8 

Appeal  to  circuit  court 326  9,  348 

Right — notice — new  trial — bail,  stay 326-8,  348-50 

Witnesses — transcript,  neglect — no  dismissal 328-9,  349-60 

Ap|>earance  in,  how  made,  N.  D. — discontinuance  in 329 

What  order  dismissing  appeal  from,  is  appealable 207 

Order  refusing  vacation  of  order,  order   dismissing  appeal  from,   nOt 

appealable 208,  242 

Court  order  dismissing  appeal  from,  is  appealable 242 

Sec.  5232,  Comp.  Laws,  inapplicable  to  appeal  f .  om 227 

Justification. 

See,  Undertaking,  Surety,  Appeal, 

Of  crime,  evidence  reducing  grade,  not 376 

Intoxication,  to  what  extent  a,  or  excuse  for  crime 379 

Lager  Beei:. 

See,  Beer 107,  115,  382 

Law  Term. 

See,  Term,  County  Court 271 

Ubel. 

Indictment  for,  jury  determine  law  and  fact. 381 

Verdict  for,  general,  or  special 405 

Lien. 

See,  Pledge,  Mortgage. 
35i— T  P 


554  INDEX. 


Of  mechanics,  priority  of,  sale  under 114,  234 

Threshers,  location  of  g^rain — striking  out  evidence 114-5 

Prior  mortgrage,  restoring  record  of 114 

Fordosuro  of  seed— complaint  for 118 

Of  stable-keeper,  use  of  horse 195 

On  crop,  realty  sale ■ 208 

Statutory,  not  waived  by  taking  other  security 114 

Plea  of,  in  claim  and  delivery,  lease,  pledge 147 

Liqhts. 

For  jury,  county  pays  for 401 

Limitations. 

Plea  of  statute — burden  of  proof — promissory  note 14 

Void  tax  deed,  statute  of,  not  operative  on 146 

Rescission  of  contract,  discovery  of  facts 169 

Uquor. 

See,  Intoxicating  Liquors — "Beer" 107,  115 

Lot 

Verdict  decided  by,  new  trial,  criminal  cases 425 

Malicious  Prosecution. 

Advice  of  counsel,  probable  cause 22 

H/landamus. 

Jurisdiction  of  supreme  court  in,  constitution 191 ,  255 

Pending  proceeding  below — stay  by  withholding 192 

Discretion  in  granting  or  withholding 192 

Order  refusing  to  vacate,  non-appealable 208,  243 

Record  on  appeal  from  judgment  in 212 

Order  sustaining  demurrer  to  answer,  appeal 243 

Marriage. 

Proof  of,  on  trial  for  bigamy 397 

Falsely  personating,   and   marrying   in  assumed  character — evidence, 
statute 389 

Marsiiai. 

Of  supreme  court,  N.  D.,  executes  writs 518 

Mechanics'  Lien. 

See,  Lien. 

Mill  Dam. 

Measurement  of,  special  question  for  jury 36 

Minutes  of  Court. 

See,  New  Trial . 
Exception  to  ruling  entered  on,  when , 69 

After  judgment,  noted  on .74 

Application  for  new  trial,  on 174,  430 

Not  part  of  record 174 

Notice  of  intention,  based  on 175-6 

Specifications,  when  motion  made  on 178 

Motion  for  new  trial  on,  when  heard 183,  430 

Motion  for  new  trial  on,  other  papers  used » 183 

Waiver  of  right  to  jury  trial  entered  in 278 

Where  new  trial  asked  for  on,  costs  for  reporter's  transcript 504 

Misdemeanor. 

County  court  has  jurisdiction  of 277 

Indictment  for,  defendant  absent  on  return  of  verdict 405 

Mistake. 

See,  Neglect,  Delay. 

Of  appellant  in  serving  appeal  notice,  procedure  on 293 

Mutual,  in  contract,  parol  testimony  concerning 128 


INDEX.  555 


Money. 

See,  Judgment. 

In  lieu  of  undertaking  on  appeal 215,  342 

Judgment  for,  what  bond  on  appeal 216 

Payment  of  under  judgment — modifying  judgment 229 

In  lieu  of  bail,  justices'  court 850 

In  lieu  of  bail,  when  refunded 393 

Mortgage. 

See,  Lien,  Foreclosure. 

Restoring  record  of  prior 114 

On  "thre&hing  rig" 116 

Bill  of  sale  as 127 

Loan  by  mistake,  revivor  of . .    203 

Foreclosure  of  by  advertisement,    refusing  vacation  of  order  for  court 

proceedings — appeal 238 

Action  by  mortgagee  against  purchaser — demand 141 

Void,  enjoining  incumbrance,  notice 145 

On  decedent's  realty,  parties  defendant 196 

Execution  of,  witness,  question  for  jury 108 

P"'raudulent,  of  chattels,  withholding  from  record 106 

Motion. 

See,  Papers,  Notice,  Motion  for  New  Trial,  Dismissal  of  Appeal. 

Renewal  of  —change  of  judges  139 

Renewal  of — res  judicata 197 

Must  bring  in  all  evidence  on,  diligence 198 

To  reinstate  appeal,  supreme  court 464 

For  new  trial,  unnecessary  when 151-2,  193,  484 

In  supreme  court,  notice,  grounds,  service 496-7,  506 

Statute  governing  notice  of 497 

Papers  on,  supreme  court,  copies 496-8 

Opinion  of  supreme  court  filed  on 502 

To  dismiss  appeal,  supreme  court 506-7 

To  bring  in  evidence,  on  appeal — no  dismissal 512 

Attorneys  admitted  to  practice  on. 615 

Motion  Day. 

In  supreme  court 494 

Motion  to  dismiss,  only  made  on,  when 497 

Motion  for  New  Trial. 

See,  New  Trial. 

When  unnecessary  to  review  above. 151-2,  193,  484 

When  not  jurisdictional,  on  appeal 484 

Errors  of  law  reviewed  above  without 484 

Want  of,  not  ground  for  dismissal  of  appeal 513 

Motion  in  Arrest. 

None,  in  justices'  court 339 

Motion  Papers. 

See,  Motion,  Papers,  Notice,  Petition  for  Rehearing. 
In  supreme  court,  copies — typewritten 496-8 

Municipal  Corporation. 

See,  Corporation,  Public  Corporation.  Negligence. 

Appeal  by,  cause  has  precedence  on  calendar — stay 224-5 

Liability  of  for  defective  sidewalk,  proximate  cause,  notice 96 

Bonds  of,  estoppel,  conditions  precedent 164 

Negligence  of,  contributory  by  traveler — street  obstruction,  proximate 

cause 167 

Ordinance  of.  for  penalty,  when  action  under  is  a  civil 190,  357-8 

Is  appealable 511 


556  INDEX. 


Appeal  by,  operates  as  a  stay 192 

Injunction  ajjainst,  for  nuisance 199 

"Municipal,"  construction  of  statute 173 

Special  charter,  jury  trial,  right  to  appeal 323 

Murder. 

See,  Homicide 376 

Burden  of  proof  on  defendant,  when 397 

Plea  of  former  conviction  of,  when  a  nullity 380 

Plea  of  once  in  jeopardy  for,  because  of  reversal,  bad 425,  446 

Narrative  Form. 

Questions  and  answers,  form  in  abstract 479 

Natural  Spring. 

See,  Water 116 

Neglect. 

See,  Inadvertence,  Diligence. 

When  no  remedy  for,  or  inadvertence  in  preparing'  case 460 

When  judgment  set  aside  f()r  excusable ■; 151 

Of  defendant's  counsel,  judgment  opened  for 151 

Justice  of  peace  may  vacate  judgment  for  excusable 151 

Or  mistake,   must  be  very  exceptional   to  justify  additional  abstract, 

when 486 

Of  justice  to  send  up  transcript,  fine  for 287,  315-6,  328,  343 

Of  appellant,  serving  appeal  notice,  procedure  on 293 

Negligence. 

Instructions  as  to 21,  22,  166 

Evidence  as  to — new  trial 95-103 

Proximate  cause — tire — firebreak — sidewalk — drawbar 95  6,  167 

Frightened  horse — section  foreman — engine  167  8 

Defendant's  orders  to  servant 168 

Remote  cause — killing  stock 96 

Contributory — drawhead — shipping  contract — caboose 96-7 

Presumptive — fire 97 

Primary  case  of  overcome 97 

Killing  stock— locomotive  setting  fire 97-8,  166 

Presumption  of  overthrown — court  determines 98,  135 

Gist  of  action — rebuttal — killing,  value — rebuttal 98 

Affirmative  proof — express  proof,  of 99 

Directing  verdict  concerning — hazai'd— servant 99 

Is  question  for  jury — jury  determines 21,  100 

Conflicting  evidence  concerning — differing  minds 100 

Special  finding  of 134 

"Ordinary  care" — special  question 37,  167 

Rebuttal,  as  to,  submitting  case  to  jury 18 

Evidence  of,  question  of  law 21 

Contributory,  freedom  of  plaintiff  from,  instruction 21 

Proximate  cause,  question  for  jury 21-2,  168 

Contributory,  burden  of  proof 22,  167 

Instruction,  specific  exception  to,  as  to 138 

Cattle  at  large — trespass — abstract  proposition 165  6 

Passenger — traveler,  care 166-7 

Degree  of  care,  fire 166 

Right  of  way,  title 166 

Contributory,  question  for  jury 166-7 

Plaintiff's  freedom  from— care 166-7 

Fellow-servant,  foreman,  character  of  work 168-9 

Negotiable  instruments. 

See,  Promissory  Note. 
Note,  bona  fide  holder,  motion  for  verdict 18 


INDEX.  557 


School  bonds,  estoppel  by  recitals 87 

Indorsee  for  value 87 

Bill  of  exchiingo,  conditional  delivery — exchange 91 

Bank  draft,  agency  of  cashier 107 

Ultra  vires,  bank  purchasing  note   147 

Guarantee  by  partner,  for  accommodation , 163 

Bank  check,  Jigainst  deposit,  ownership '. 163 

Newly  Discovered  Evidence. 

See,  New  Trial 78,  84-5 

New  Matter. 

As  basis  for  rehearing 500 

New  Trial. 

See,  Motion  For  New  Trial,  Instructions,  Verdict. 

New  trials,  civil  action,  generally , 77-189 

Defined 77 

Causes  for,  enumerated , 77-8 

Irregularity — abuse  of  discretion 78-83 

Irregularities — instances  of 78-81 

Abuse  of  discretion — instances  of 81-83 

Misconduct  of  jury,  ground  for 78,  83-4 

Juror's  testimony  inadmissible  to  impeach  verdict 83 

Accident  or  surprise,  ground  for 78,  84 

Great  caution,  in  granting,  on  such  grounds 84 

Destruction  of  record,  as  ground  for 84 

Newly  discovered  evidence,  ground  for 78,  84 

What  affidavits  must  show 84 

Discretion  of  court,  motion  addressed  to 84 

Probable  different  result,  must  show 85 

Excessive  damages,  ground  for 78,  85 

Aggravation — consequential 85 

On  court's  on  motion,  when 85-6 

Insufficiency  of  evidence — against  law,  grounds  for 78,  86-114 

•  Insufficiency  generally — what  sufficient 86-93 

Conflicting  evidence 93-5 

Verdict  conclusive,  when 93 

Substantial  conflict — rule  of  reversal 94 

Negligence — damages 95-103 

Directing  verdict  for 100-7 

Question  for  j  ury,  when 107-9 

Pleadings,  issues,  evidence  under 109-10 

Instructions,  assuming  facts 110-1 

The  record,  in  treatment  of 111-2 

Specification  of  particulars 112-3,  177 

Verdict  or  decision  against  law,  grounds  for 78,  1 13-4 

Error  in  law,  grounds  for 78,  114-73 

Generally 114-16 

Pleadings,  as  related  to 116-22 

Examination  of  witnesses,  as  related  to 122-5 

Evidence,  as  related  to 125-32 

Instructions,  as  related  to 132-4,  15-16 

Verdict,  as  related  to 134-5,  17 

Findings,  as  related  to 136-7 

Exceptions,  as  related  to 137-8 

Assignment  of  error,  as  related  to 138-9 

The  record,  as  related  to 139-40 

Error,  reversal,  etc.,  as  related  to 140 

Practice,  procedure,  as  related  to 140-57 

Motion  for,  when  unnecessary 161-2,  188-9,  193,  484 

Foreclosures,  as  related  to 157 


558  INDEX. 

Contracts,  as  related  to 157-159 

Negligence,  as  related  to 18,  20,  165-169 

Damages,  as  related  to 22,  169  172 

Statutes,  as  related  to 172-4 

Application  for,  papers,  affidavits,  statement,  record 174-5,  183 

When  and  where  heard  183-5 

Notice  of  intention,  on  what  papers 175-182 

On  aflidavits  178-180 

On  bill  or  statement 180-2 

On  minutes 182 

On  court's  own  motion — grounds — instanter 182-3 

Notice. of  motion  for,  when  served — contents 183,  174,  176 

Diligence  in  moving  for — dismissal 185 

Extension  of  time  to  move  for — exparte 185-6 

Presumptive  extension — cause  shown 187 

Bill,  statement  used  on  motion,  used  on  appeal 187  8 

Review  of  errors  without  motion  for     151-2,  188-9, 193,  240,  246 

Denying,  before  judgment,  order  reviewable  on  appeal 240 

When  notice  of  appeal  from  order  denying  is  surplusage 240-1,  512 

Necessity  for  motion  for,  review  of  sufficiency  of  evidence 246,  484 

Judgment  entered  before  motion  for,  appeal  presents  error  on  bill 246 

Review  on  petition  in  error  without  motion  for 246,  249 

Review  of  order  denying,   on   appeal   from  judgment,  order  not  men- 
tioned, quaere 247 

Appeal  from  judgment,  court  trial,  must  assign  error,   to  review  evi- 
dence  249 

No  motion  for,  sufficiency  of  evidence  not  examined  on  appeal. .  ..249-50,  484 

In  supreme  court,  final  judgment 253-4,  481 

Motion  for,  after  judgment,  appeal  from  judgment,  review  of  error 245 

In  county  courts,  jurisdiction 265-6,  276 

On  appeal  from  county  to  circuit  court 265 

On  appeal  from  justice's  court,  when 319-20,  350 

In  criminal  cases,  generally 424-431 

When  ordered,  on  return  of  special  verdict 408 

What  errors  taken  advantage  of  on 424 

Defined— effect  of — testimony  anew  on — bar 424-5 

Power  to  grant,  what  cases,  procedure 425  6 

Newly  discovered  evidence,  affidavits 425-7 

Improper  exclusion  of  evidence  on 427 

Application  for,  when — grounds — stay 429-31 

Notice  of  motion  for,  on  what  papers 430 

Specification  of  errors,  on  minutes — papers 430-1 

On  reversal  in  supreme  court  446 

Reversal  without  granting,  discharge  of  defendant 446 

Record,  must  show  motion  for,  presumption,  review 471 

When  abstract  deemed  to  show  motion  for 481 

What  reviewed  without  motion  for .  484 

When    motion   for  made  on   minutes,   reporter's    fees    for    transcript 

allowed 504 

Double  appeal,  appeals  from  what  orders  relating  to,  are  or  not 511 

Nonsuit 

Whether  can  be  ordered — practice  on 13,  46 

Submission  of  question  to  jury — statute 148 

Not  Guilty. 

See,  Plea,  Verdict. 

Note  of  Issue. 

Furnished  to  clerk 6 

To  contain  what 6 

When  need  not  be  filed 6 


iNDE^i.  559 

But  one  need  be  furnished 6 

Unnecessary  on  appeal  from  justice  to  dist.  court 344 

Notice. 

See,  Appeal,  New  Trial,  Dismissal. 
Of  motion — same  in  supreme  court,  service 496-7 

Notice  of  Appeal. 

See,  Appeal,  Dismissal  of  Appeal. 

Is  jurisdictional — waiver  of 453,  507 

County  to  circuit,  dist.  court 282,  292 

Justices',  to  circuit,  dist.  court 311,  340 

In  criminal  cases 327,  348 

From  district  to  supreme  court,  criminal  cases 435 

Circuit,  dist.  court,  to  supreme,  generally 204-6,  211 

Under  rules  of  court 452-3 

Waiver  of,  appearance 454     * 

Irregularities  in — record  as  to 454-5 

Abstract  must  show — presumption 478,  489 

Dismissal  of  appeal  for  improper,  etc 506-7 

Notice  of  Argument. 

See,  Hearing,  Argument 492 

Notice  of  Insistence. 

For  hearing  in  supreme  court 452,  455 

No  hearing  at  next  term,  when — rule  construed 455 

Notice  of  Intention. 
See,  New  Trial. 

"When  served 175-6 

Must  specify  particulars  of  evidence,  when 112,  177 

Must  specify  statutory  grounds 176,  179 

Statute  construed — whether  jurisdictional 178-9 

Record,  what  a  sufficient,  of 179 

And  of  motion,  united 184 

Effect  of  delayed  service  of 186 

Served  too  late,  appeal  not  dismissed 509 

Notice  of  Trial. 

See,  Notice  of  Argument,  Call  of  Calendar. 

When  party  may  give 6 

But  one  need  be  given 6 

Date  of — error  in,  immaterial  when 7,  145 

Before  referees 58 

Unnecessary  on  appeal,  probate  to  circuit,  district  court 282,  297 

New  cases  noticed  for  additional  term,  N.  D 7 

Unnecessary  on  appeal  from  justice 319,  344 

Nuisance. 

Common — sale  of  liquors,  injunction 115 

Municipal  corporation  may  enjoin 199 

Judgment  abating,  bond  on  appeal 221 

Oath. 

Of  referees 57 

Of  jurors,  civil  cases  generally 12 

Of  jurors,  criminal  cases  generally 367 

Of  officer  with  jury,  justices'  court 324,  337 

In  circuit,  dist.  court,  criminal  cases 399 

Of  jury,  justices'  court 310,  336 

In  criminal  cases ' 323-4,  346 

Of  clerk  of  supreme  court.. 449 

Of  attorney,  on  admission  to  practice 516-7 


560  INDEX. 


Offense. 

See,  Crime,  Defendant,  Defense. 

Grade  of,  evidence  only  reducing,  not  excuse  or  justification 376 

Proof  of  substantial,  under  indictment 379 

Proof  of  higher,  defendant  discharged 390 

No  jurisdiction  over,  defendant  discharged 392 

Consisting  of  degrees,  effect  of  conviction,  acquittal 400 

Degree  of,  when  jury  must  find. 408-9 

Degree  of,  evidence  of  intoxication  as  bearing  upon 379 

Ojfer  of  Defendant. 

When  furni&hed  by  defendant,  on  trial 8 

Ofpcer. 

See,  Sherifif,  Marshal,  Corporation. 

Jury  in  civil  cases  given  in  charge  of *. 28 

In  criminal  cases , 399 

Oath  of  to  keep  jurj',  justices'  court 337 

Detains  defendant  in  custody,  on  api^eal,  when 440 

Discharges  defendant  from  custody  on  bail,  writ  of  error 440-1 

Of  bank,  discharge  of  mortgage  by 163 

Liability  of,  for  loss,  worthless  securities 163-4 

Official. 

Of  state,  taking  appeal  by  stays — execution 225-6 

A  party,  cause  given  preference  on  appeal 255-6 

Bond  of,  in  lieu  of  appeal  bond,  probate  appeal,  effect 288,  292 

Once  in  Jeopardy. 

See,  Former  Acquittal,  Former  Conviction. 

Constitutional  provisions  as  to 385 

When  plea  of  not  good 391,  397.  425 

Opening  and  Closing. 

See,  Practice,  Defense,  Counsel,  Argument. 
Of  case,  civil  action,  generally 13,  14 

In  criminal  action,  generally 371 

Of  argument 13,14 

In  supreme  court,  under  rules 496-8,  494 

Opening  by  cross-examination 125 

Opinion. 

See,  Decision,  Bias. 

Juror  possessing,  in  civil  action 10 

Juror  possessing,  in  criminal  action 367-8 

Of  guilt,  by  witness — credibility 378 

Of  supreme  court,  in  writing,  filing 502 

Upon  what  matters  written  and  filed 502 

Juror  having,  based  on  newspaper  reports ^  .  368-9 

Supreme  court  clerk  not  to  permit,  to  be  taken 449-50 

Of  supreme  court  may  be  examined  or  copied 450 

Oral  Evidence. 

See,  Parol  Procedure. 

Order. 

See,  Court,  Judge,  Trial,  Appeal,  Argument. 

Appealable  to  supreme  court 207-8 

Appealable  under  sec.  5236,  Comp.  Laws,  sec.  5626,  Rev.  Codes,  gener- 
ally  233 

Under  subd.  1,  appealable — non-appealable 234-6 

Under  subd.  2,  appealable — non-appealable 237 

Under  subd.  3,  appealable — non-appealable. 238-40 

Under  subd.  4,  appealable — non-appealable 240-2 

Under  subd.  5,  appealable — non-appealable 242-3 


INDEX.  561 


Involving  merits 244-5 

Without  jurisdiction,  when  appealable 509 

Of  court,  dismissing  appeal,  not  appealable — judge's  valid 510 

In  criminal  procedure 445 

Judge's,  what  is 234-5,  242 

Chambers,  what  is,  injunction — dismissing  appeal 237.  242-3 

Intermediate,  review  of — notice  of  appeal — surplusage.  ..240-2,  245,  286,  299 

To  show  cause,  supreme  court,  what  day 497,  50H 

Of  supreme  court  adopting  rules 519-20 

Oral  evidence,  basis  of  an,  to  be  in  bill  on  appeal 67,  214 

Of  reference,  powers  conferred  by 136 

Confirming  referee's  report,  waiver 136 

For  publication  of  summons,  may  be  before  attachment 143 

Written  sale,  oral  arrangement  to  vary 161 

Settling  bill  of  exceptions  extends  time  for 181,  186 

Dismissing  motion  for  new  trial,  appealable 185 

Of  arrest,  affidavit— information  and  belief 200 

Execution  against  person  may  issue  without 202 

Transcript  cm  appeal  from 210^ 

Bill  or  statement  necessary  to  review  of 212,  250' 

On  appeal  from  judgment 245,  250 

Appealed  from,  setting  aside  after  apy)eal,  nullity 223 

Undertaking  on  appeal  from,  attachment,  injunction,  stay •  .223-4 

As  related  to  double  appeal )245,  511-12 

What  probate,  not  stayed  by  appeal 284-5 

Of  proceeding  on  trial,  civil  actions — same,  criminal 12-13,  371-2,  381 

Ordinance. 

Municipal,  prescribing  penalty,  what  action  to  recover  is  a  civil 190 

Violation  of,  appeal  from  judgment  of  acquittal  is  proper  remedy.  .207,  511 

Ordinary  Care. 

See,  Negligence 37,  103 

Organic  Act. 

Act  of  1887,  on  appeals,  not  in  conflict  with 238 

Papers. 

See,  Notice,  Motion,  Service,  Typewritten  Papers. 

When  plaintiff  to  furnish,  on  trial 8 

When  defendant  to  furnish  on  trial 8 

Filing  of,  in  supreme  court — calendar 465-6 

In  respondent's  hands — abstract  on  appeal,  estoppel 480 

When  to  accompany  notice  of  motion 496-7 

Original  proceedings,  supreme  court,  on  printed 517 

Printed  abstracts  and  briefs,  when  not  required 254 

Original  sent  up  on  appeal,  unless  otherwise  ordered 458,  463 

Informally  attached,  no  part  of  record  on  appeal 459,  66 

Insufficient  reference  to  in  certificate 459 

What,  or  evidence,  not  part  of  record 174,  181,  184 

Parol  Evidence. 

See,  Evidence 127-8,  157-8 

Partnerstiip. 

Complaint  against,  title  of 19,  118 

Dissolution  of,  firm  debts,  partners 90 

Unincorporated  association,  partners 118 

Actioa  involving,  conclusions  of  law  sustaining 167-8 

Agreement  for  land  sale,  parol  evidence 158 

False  representations  of  partner,  liability  for 158 

Party. 

See,  Plaintiff,  Defendant,  Appeal . 
In  complaint — partners — party  by  ccfbsent 118-9 


562  INDEX. 


Plaintiff,  grantee — state's  attorney 142 

Eqiiit}U)le  owner — corporate  interests 142 

Director's  suit — trust  property— motion 143 

Former  party  defendant,  res  judicata 149 

Beneficially  interested,  in  attachment 193 

On  apjieal  to  supreme  court,  civil — criminal 194,  433-4 

Defendant,  in  foreclosure — decedent 196 

To  Uix  injunction  suit,  shareholders  of  bank  stock 199 

Appearance  of,  in  person,  justice's  court 329 

Omitting^  name  of  from  appeal  notice 206 

Service  of  appeal  undertaking  on,  and  filing  with  clerk 206 

How  broug'ht  in,  appeal  probate  to  district  court 293 

Service  of  appeal  notice  on  attorney,  is  service  on,  when 454 

Who  must  bo  made,  to  appeal  probate  to  district  court  291-2 

Payment. 

Advances  on  agency  sale 147 

Application  of,  account,  note ^ 203 

Judgment,  postponing,  of 229 

Penalty. 

See,  Ordinance,  Punishment,  Municipal  Corporation. 

Action  for — statute — appeal 171,511 

Municipal  ordi nance  prescribing,  involves  civil  action 190,  357-8 

Percolating  Water. 

See,  Water 116,  195 

Personating. 

Falsely,  evidence  of 389 

Petition  for  Rehearing. 

See,  Rehearing,  Remittitur,  Remand. 

Under  supreme  court  rules 498-501 

Service,  filing,  grounds,  hearing 498-500 

At  what  term— leave — new  matter,  costs 498-501 

Bjused  on  additional  abstnict 486,  501 

Piace  of  Trial. 

See,  Venue. 

Plaintiff. 

See,  Party,  Defendant,  Apjjellant,  Opening  and  Closing. 

When  to  furnish  papers  on  trial 8 

States  issues  and  produces  evidence  on  trial 13 

Who  is,  on  appeal,  probate  to  circuit 286 

Who  is,  in  error 433 

Plea. 

See,  Defense,  Former  Acquittal,  Former  Conviction. 

Of  guilty,  circuit,  dist.  court 351 

Of  not  guilty 351 

Of  guilty,  county  courts 269,  278 

Of  guilty,  justices'  courts 321,  345 

Of  not  guilty,  justices'  courts 322,  345 

Withdrawal  of  plea  not  guilty 351,353-4 

Read  to  defendant,  when 371 

Failure  to  enter,  when  harmless  error 380 

Of  former  conviction,  when  a  nullity 380 

Of  former  acquittal,  when  not  good 391 

Stating,  by  counsel  to  jury 380 

Pleading. 

See,  Complaint,  Answer. 

When  copy  of  furnished,  on  trial 8 

Evidence  under,  new  trial t 109-10 


INDEX.  563 


As  related  to  error  of  law,  new  trial 116-122 

Illegality  of  contract,  must  be  plead 121 

Relevency  of  evidence  under 121 

Foreign  law-  judgment  roll 121 

Presumption  in  absence  of  from  abstract 479 

Time  for,  on  condition,  given  by  rule 521 

In  county  court,  same  as  in  circuit 266 

Setting  them  out  in  abstract  on  appeal 474-5 

Points. 

To  be  printed,  in  calendar  causes 292-3 

Police  Justice. 

County  courts,  jurisdiction  of  appeals  from 264,  275 

Policy  of  Law. 

See  Public  Policy. 
Is.  to  stay  proceedings .• 217 

Polling  the  Jury. 

See,  Jury. 
In  civil  cases— in  criminal  cases 29-30,  413 

Postponement 

See,  Continuance. 

Practice. 

See,  Procedure 140-156,  197-202 

Opening  case  by  cross-examination 125 

Omitting  proof  of  fact,  reopening  case 146 

Offer  of  proof — excluding  evidence 146 

Affidavit  of  merits — showing — delayed  answer 146 

Motion  to  dismiss,  renewal  at  close  of  case 147 

Entry  of  judgment — stay 150 

A]ipearance  by  attorney,  authority 151 

And  procedure— motion,  renewal  of,  diligence 197-8 

Before  referee,  affidavits  on  motion,  in  attachment : 200 

As  to  undertakings  on  appeal 226 

In  county  courts,  as  in  circuit,  district 266,  273-4 

In  criminal  cases — procedure  3H0 

As  to  abstract  in  supreme  court 478-85 

On  rehearing,  supreme  court,  petition 499  500 

On  appeal  from  taxation  of  costs,  supreme  court 1.503-4 

Opinion  of  supreme  court  on,  filed 502 

Practice  of  Law. 

See,  Attorney. 

Clerk  of  supreme  court  not  to  engage  in 448 

Rules  for  admission  of  attorneys  to 514-17 

Prayer. 

For  reversal,  on  writ  of  error 438 

Prejudice. 

See,  Bias,  Error  in  Law,  New  Trial,  Presumption. 

No  reversal,  where  no,  could  result 123 

Or  bias,  cross-examination  extended  to  show 123 

Re-direct  examination  to  rebut  inference  of 429 

Error  presumed,  if  evidence  may  140 

Must  appear,  to  require  reversal  or  new  trial 140 

Presumed,  on  showing  error,  refusal  to  strike  evidence 140 

Rule  as  to,  in  admitting  improper  evidence. 140 

Favorable  testimony,  no  presumption  of,  from  admission  of 140 

If  irresponsive  answer  is,  reversal  should  follow 140 

Dismissal  of  appeal  without,  is  affirmance 518 

To  substantial  rights,  record  not  showing  plea 415 


564  INDEX. 


Preliminary  Examination. 

Bofore  information,  in  county  courts. 2(58-9,  278-9 

Change  of  venue  in  pi'oceedings  on,  justices'  court 822 

On  refusal  to  accept  plea  of  guilty,  justices'  court 345 

Presumption. 

See,  Evidence,  Waiver,  Estoppel. 

That  property  taken  by  of^cer  from  defendant,   replevin,  process 43 

That  findings  on  disputed  facts  are  right 48,  88-89 

That  findings  by  court  were  waived 52,  137,  469 

Of  disregard  of  instructions  by  jury 94 

As  to  negligence — statutory,  overcome 97-8,  185 

Of  correctness  of  bill  of  exceptions 75 

Of  prejudice,  from  admitting  incompetent  evidence 110 

As  to  amount  due,  fi-om  jury's  answer  to  specific  question   Ill 

That  findings  accond  with,  evidence,  no  bill  of  exceptions Ill,  479 

That  order  of  reference  made  with  party's  consent 186,  489 

That  court  considered  evidence  for  other  purposes,  not  indulged 140 

That  action  brought  bj'  state's  attorney  by  consent  of  county  com'rs 142 

Supplies  omission,  as  to  judgment,  on  appeal 151 

Of  local  agent's  authority  to  make  lease,  when 169 

Of  validity  of  ex-parte  order  extending  time 181 

That  bill  was  settled  regularly  within  statutory  time 187 

That  men  able  and  willing  to  pay  debts  when  due 196 

That  clerk  did  not  annex  decision  to  judgment  roll ., 211 

From  abstract,  that  judgment  was  entered 233 

Of  validity  of  proceedings,  when  attaches  to  inferior  courts 261 

That  information  not  filed  till  preliminary  examination,  or  waiver 269 

As  to  contents  of  abstract,  supreme  court 478-83 

Of  regularity,  when  cannot  prevail — abstract 481 

As  to  abstract  and  record,  on  appeal 488-9 

That  information  filed  after  preliminary  examination 269 

When,  is,  that  judge  charged  jury  orally 380 

That  no  decision  filed  below — record 460 

As  to  specifications  of  error,  evidence,  that  court  below  considered 470 

That  there  was  no  bill  of  exceptions  or  statement  below 471 

That  state's  attorney  had  evidence  to  sustain  action 471 

That  order  for  receiver  based  on  affidavits  and  answer 479 

That  all  necessary  evidence  in  bill  and  abstract 488 

That  abstract  claims  certain  steps  taken — authenticated  record 488 

Principal  and  Agent 

See,  Agency. 

Printed  Papers. 

See,  Papers. 

Probable  Cause. 

See,  Malicious  Prosecution. 

Instructions  as  to,  advice  of  counsel 22 

Certificate  of.  on  wi  it  of  error,  appeal 486  7 

Probate  Court. 

See,  County  Court. 

Proceedings,  conform  to  county  court  law 262 

Appeal  from  to  circuit,  dist.  court ; 280-288,  291-301 

Prom  what  judgments,  etc. — who  may 280-1,  291-2 

Time  for  taking — how — bond — notice  of  irial 282,  292-3 

Stay  bond  on,  prosecution  on,  commitment. 288,  288,  294-6 

Undertaking — sureties— transcript 282-5,  287,  294-7 

Hearing  on — plaintilT  above — de  novo  trial 285-6,  299,  30Q 

Dismissal  of — costs — judgment,  remittitur — acts  below 287-8,  298,  300-1 

On  questions  of  law  alone,  new  hearing,  evidence 286,  293,  297  9 


INDEX.  565 


Powers  of  appellate  court  on 286,  299 

Procedure. 

See,  Practice,  Code  of  Civil  Procedure,  Code  of  Criminal  Procedure. 

Jurisdiction — domand  before  suit 141 

Parties   -attachment 142-3 

Injunction.— trial 144-5 

Defenses — res  judicata,  former  action 146,  148-9,  197 

Judgment — decree 149-51 

As  related  to  now  trial 151-2 

Execution — exemi)tions^appeals — certiorari 153-156 

In  county  courts,  as  in  circuit,  district 266,  273-4 

On  appeal  from  taxation  of  costs,  supreme  court 503-4 

Proceeding. 

See,  Action,  Special  Pi'oceeding. 

What  order  not  made  in  a,  is  void 193 

Original,  supreme  court,  heard  on  printed  papers 517 

Statutes  relating  to,  in  district  court,  apply  to  county 266,  273-4 

Process. 

See,  Summons,  Writ,  Attachment. 

Service,  native  corporation,  foreign  insurance 143 

Publication  of  summons,  order,  attachment 143 

Service — "managing  agent" — mining  claimant 198 

In  c^unty  court 266,  276 

From  supreme  court,  form,  return  of 218,  259 

Promissory  Note. 

See,  Negotiable  Instrument. 

Witness  to — parol  evidence 128 

Conditional,  directing  verdict  as  to 19 

Bonda  lide  holder 18 

For  price  of  realty,  bond  for  deed,  quit-claim 104 

Notes  in  pnyment,  delay  in  accepting ; 108 

Usury,  running  account — note 113 

Defense,  breach  of  warranty,  bona  fide  holder 147 

Attorney  fee,  negotiability — statute 162 

Corporation  pledge  of,  indoi'sement 162 

Fov  price  of  binder,  warranty,  rescession 162 

Want  of  consideration,  note  in  settlement. H 163 

Guaranty  of  collection,  solvency 163 

Proof. 

See,  Evidence,  Burden  of  Proof,  Presumption,  Witness. 

Offer  of,  to  be  made,  overruled  question  on  collateral  point 131 

Of  waiver  of  notice  of  loss,  inference 131 

Aflirmative,  of  negligence-- express,  of 99 

Presumptive,  of  making  order  of  reference 126 

Of  overt  acts,  on  trial  for  conspiracy .387 

Of  higher  otTense  than  charged,  jury  discharged 390 

County  court  hears,  on  trial  of  issues .290 

Of  marriage,  cohabitation 397 

Rebuttal  of,  of  practices  affecting  witness'  credibility 428 

Of  service  of  notice  of  appeal,  omission  of  year 454 

Of  substantial  crime  involved  in  indictment 379 

And  a! legations,  heard  by  justice's  jury 324 

Proximate  Cause. 

See.  Negligence 21-2,  95-6 

Public  Corporation. 

See,  Corporation,  Municipal  Corporation. 

School  district  bonds,  want  of  consideration— corporate  existence 164-5 

Township  bonds,  proceeds,  sureties  of  treasurer 165 


566  INDEX. 


Void  warrants,  ratificiition,  directing  verdict 102 

Public  Policy. 

Control  of  corporate  stock,  contract,  specific  performance 202 

Attorney  disqualified  to  be  surety,  on  grounds  of 228 

Publication. 

Service  of  notice  of  appeal  by 4H6 

Order  for,  of  summons,  made  before  attachment 14;i 

Notice,   "six  successive  weeks" 143 

Punishment. 

See,  Verdict,  Judgment,  Conviction. 

Imposed  by  jury,  when  wrong,  procedure 411 

Court  empowered  to  reduce  extent,  when 412 

Not  increased  on  appeal  by  state 447 

Question  for  Jury. 

See,  Jury,  Evidence,  Instructions. 

When  negligence  is 21,  100 

Different  conclusions  on  evidence .• 107 

Bank  draft,  agency 107 

"Beer,"   "lager  beer" 107 

Security,  acceptance  of — execution  of  mortgage 108 

Invoice  price — notes  in   payment— rescission , 108 

Waiver  of  submission  of  case  to 102,  45 

On  court  and  referee  trials 249 

Assumed  fact,  waiver  of  as  a,  by  moving  for  verdict.. 45 

Question  of  Fact. 

County  seat,  intention  of  voters,  is 90 

Assuming  there  is  none  for  jury,  directing  verdict 105 

Review  of  on  appeal,  court  trial,  exceptions 247 

Court  and  referee  trials,  review,  motion  for  new  trial 249 

Question  of  Law. 

See,  Jury,  Evidence,  Instructions. 
Ownership,  when  is  a 38 

Questions  and  Answers. 

In  evidence— abstract  in  narrative  form 479 

'  'Quotient  Verdict. " 

See,  Verdict ^ 83 

Reasonable  Doubt. 

See,  Evidence,  Instructions. 

As  to  guilt— as  to  d'^gree 383 

Instruction  defining,  approved 429 

Reargument. 

See,  Rehearing. 

On  new  abstract,  when  not  permitted 486 

Not  after  remand,  supreme  court 501«-2 

Rebuttal. 

See,  Trial,  Evidence. 

Reinforcing  plaintiff's  case,  in,  further  evidence 13,  14 

Same,  in  criminal  cases. . .371 

Receiver. 

Order  discharging,  abuse  of  discretion — appeal 239 

Recognizance. 

All,  stand  over  to  next  term  supreme  court,  when 257 

Record. 

See,  Judgnrent  Roll,  Bill  of  Exceptions,   Statement  of  Case,  Evidence. 

The,  as  related  to  evidence,  new  trial 111-2 

The,  as  related  to  error  in  law,  new  trial 139-40 


INDEX.  567 


Decision  before,  is  rniicle — doniai  of  new  trial  without 175 

Amendment  of,  below,  after  appeal,  remand 229 

Certification  of,  county  court  to  circuit 270 

What  sufficient,  on  motion  for  new  trial 175,  179 

What  surticient  for  review  on  appeal 212-3 

Amendment  of,  practice,  power 214,  513 

What  is  part  of,  what  not  part  of 459-463 

Instructions  and  statement  part  of,  criminal  cases 423-4 

On  motion  to  dismiss  appeal — broug^ht  by  respondent 490 

Insufticient  for  review,  examination  limited \. . .  .613 

Copy  of  transmitted  on  writ  of  error 438 

Furnished  by  plaintitT  in  error 443 

Scope  of  review  on,  on  appeal 471-2 

Abstract  as  related  to — additional  abstract 478-83,  485-88 

Presumptions  as  to — when,  I'esorted  to 488-90 

Records. 

See,  Evidence 125-6 

Referee. 

See.  Trial  by  Referees 53-63 

Rehearing. 

See,  Reargument,  Petition  for  Rehearing-. 

Discussion  of  immaterial  constitutional  question  on 155 

Remittitur  held  for. 250-1,  498  9,  501 

On  non-concurrence,  supreme  court 258 

On  new  abstract,  when  permitted 486,  501 

In  supreme  court,  under  rules 498  502 

Petition,  service,  tiling-,  grounds,  hearing 498-500 

When  filed,  new  matter,  abstract 499-501 

Effect  of  proceedings  on  taxation  of  costs 503-4 

Costs  on,  when  allowed,  amount 505 

When  renewal  of  motion  is,  in  effect 197 

Reinstatement  of  Appeal. 

Motion  for — rule  not  void • 464 

Relevancy. 

Of  evidence  to  issue — pleadings 121-2 

Remand. 

See,  Remittitur. 

Amending  record  below  on — judgment  on 252,  519 

When  too  late  to-^-neglect 460 

Of  action  on  criminal  appeal,  supreme  court 445 

No  reargument  after,  of  cause ^^^ 

Eft'eet  of— jurisdiction  lost  by,  when 501-2 

Remarks  of  Counsel. 

See,  Counsel 79,  428 

Remittitur. 

Clerk  sends  down— held  for  rehearing 251,  498-9,  501 

Error  in  transmitting,  waiver •    •  •  -252 

From  circuit  to  county  court 288,  301 

From  supreme  court,  writ  of  error,  appeal 447 

When  too  late  to  send,  for  correction  below VQalni 

Holding  of,  under  supreme  court  rules Si i  9 

Remand  of  cause,  jurisdiction  lost cno'i 

On  taxation  of  costs,  appeal,  review 0"^-4 

Replevin. 

See,  Claim  and  Delivery. 
Distinction  between,  and  detinue,  abolished • 41 


568  INDEX. 

Reporter. 

See,  Stenographer. 
Requisition. 

When  defendant  detained  for — procedure 392 

Rescission. 

See,  Contract 159 

Res  Geste. 

See,  Evidence 129 

Residence. 

See,  Homestead 87,  155 

Res  Judicata. 

Former  judgment,  purchase  note,  rescission 148 

Same  question,  uncertainty  as  to 148 

Estopi)el  by  former  judgment — notes 148 

Former  party  defendant — wrong  party 149 

Former  action  pending — foreign  garnishment 149 

Foreclosure,  inferior  interest,  former  judgment 149-194 

Motion,  renewal  of,  before  another  judge 197 

Respondent. 

See,  Parties,  Appellant. 

Who  is,  on  appeal  to  supreme  court 194 

In  criminal  cases 434 

May  require  return  of  appeal,  when 463 

Brings  up  record,  motion  dismiss  appeal 490 

Re-Trial. 

See,  Trial  De  Novo,  New  Trial,  Rehearing. 

On  what  appeal  from  probate — guai'dian 166 

On  original  charge,  when 391 

On  discharge  of  jury — sick  juror 396,  403-4 

Return. 

See,  Execution,  Writ  of  Error. 

Of  apj>eal  to  supreme  court 463 

Further,  when  ordered — affidavit  for 519 

Reuersai. 

Errors  resulting  in — harmless — prejudice 140 

No,  in  part — faulty  record 2ol 

Does  not  affect  what  pj-obate  acts 288,  300 

In  circuit,  dist.  court,  appeal  from  county 286,  300 

Same,  on  appeal  from  justices'  court 319 

In  criminal  cases,  only  after  argument 443 

Power  of,  supreme  court 445 

Rule  of,  in  contempt  proceeding 432 

Prayer  for,  on  writ  of  error 438 

No,  on  emasculated  abstract 479 

In  part,  costs  on,  when  allowed — liability  of  sureties 5(t5,  217 

Reuiew. 

See,  Api:>eal,  Exceptions,  Assignment  of  Error,  Record,  Judgment  Roll. 

Matters  for,  where  court  trial  had 51 

No,  without  specifications  of  error 137-8,  213,  247 

No,  without  motion  for  new  trial,  when 152 

When  there  may  be 188,  193,  246,  484 

On  appeal  from  judgment  alone — new  trial 240,  193,  239,  155 

On  exceptions  to  findings 155 

When  scope  of  restricted  on  appeal— record 487,  471,  481 

Of  errors  of  law  only,  when 179-80 

Of  order,  on  appeal 194 

Of  order  not  mentioned  in  appeal  notice — quaere 247 


INDEX.  569 

What  for,  without  exceptions 243-4 

On  appeal  from  judg-ment  roll 248 

When  appeal  does  not  present  evidence  for 249 

Of  facts  and  law — statute 250 

On  law  alone,  appeal  from  justice 314 

Of  intermediate  order,  on  criminal  appeal 445 

Scope  of,  on  record  on  appeal 471-2 

Rules  of  Court. 

See,  Rules  of  Supreme  Court. 
Circuit  and  dist.  judges  prescribe  by,  when  jury  trial 5 

Rules  of  Supreme  Court. 

See,  Special  Index  to  Rules,  ante,  p.  528 448-521 

Order  adopting-,  S.  D.  and  N.  D 519-20 

Clerk's  certificate  to 519-20 

Power  of  court  to  make 257,  520 

"Rule,"  meaning  of 521 

Conflict  with  constitution  or  statute 520 

May  be  rescinded — application 521 

Court's  own  construction  of  conclusive 521 

Too  broad,  not  good  as  to  excess 521 

Salary. 

District  judge — filing  certificate,  condition  to  receipt  of 46-7 

Of  supreme  court  clerk,  N.  D, 452 

Sale. 

See,  Contract,  Specific  Performance,  Warranty. 

Of  realty — testimony  of  agent — commissions ' 125 

Sale  note — waiver  of  warranty 135 

Instruction  as  to,  of  merchandise,  reasonable  value 20 

.Under  execution,  re-sale  under  second,  after  redemption 153 

Not  a  contract  of,  but  a  partnership 158 

Of  land,  parol  to  identify  property ■. 158 

Rescission  of  contract  of — limitations 159 

Warranty  in  connection  with— representations — sale  under 161 

Property  statement  in  connection  with,  to  stranger,  incompetent 161-2 

Agency  guaranty  contract  of,  offsetting  commissions 165 

Percentage  on,  monthly  sales,  not  salary 169 

Measure  of  damages  on,  of  land,  stipulation 169 

Statute  of  fi'auds,  agency,  letters,  telegrams 169-70 

Deceit  in  connection  with 170 

Of  realty,  landlord  and  tenant,  crop  lien 203 

Of  realty,  power  of  ceases  on  appeal  from  probate 284-5,  296 

Second  Appeal. 

See,  Appeal 255-6,  512 

Seed  Lien. 

Foreclosure  of,  see,  Foreclosure 118 

Self-Defense. 

Burden  of  proof,  doubt 386 

Sentence. 

See,  Imprisonment,  Judgment,  Conviction,  Verdict. 

Of  death,  application  for  new  trial 431 

Illegal,  directing  judgment  below 433 

Modification  of,  when  too  long 445 

Separate  Trial. 

See,  Trial. 

In  civil  case,  discretionary -"V 

Inj  ury  shown  in  refusal  of 14^ 

36i— T  P 


570  INDEX. 


In  criminal  case,  discretion 383 

Service. 

See,  Notice  of  Appeal,  Motion,  Appeal,  Papers. 

Of  draft  of  bill  of  exceptions,  or  statement 70-1 

Of  process  on  native  corporation  in  other  state 143 

Of  notice  of  intention  to  move  for  new  trial 175-6 

On  corporation,  "manasring  agent" 198 

Of  notice  of  appeal  from  county  court 265-6,  274  5 

Of  notice  of  appeal  from  probate  court 282,  292 

Of  notice  of  appeal  from  justices'  court 31 1,  340 

In  criminal  cases 327,  348 

Of  notice  of  appeal  to  supreme  court,  civil  action 204.  211 

Is  jurisdictional — waiver — filing — on  clerk,  party 204-6 

Under  supreme  court  rules 452-5,  507 

Of  undertaking  on  appeal  to  supreme  court 204,  507-8 

Of  notice  of  motion  for  continuance  or  dismissal,  etc.,  supreme  court. . . 

496-7,  513-4 

Of  bill  of  exceptions,  or  statement,  criminal  action 418-9 

Of  notice  of  criminal  appeal  to  supreme  court — publication 435-6 

Of  citation  in  error,  on  whom 439 

Under  supreme  court  rules 455  6,  492 

Of  abstract,  appeal  to  supreme  court — of  additional 474,  485 

Of.  appnellant's  brief 490-2 

Of  notice  of  motion,  supreme  court — generally 496-7 

Of  petition  for  rehearing 498 

Sheriff. 

See,  Officer,  Bias. 

Or  coroner,  interested  in  case,  county  court 272 

Venire  issued  to,  or  constable,  by  justice  of  peace 309,  335 

Bias  of,  summoning  jury,  criminal  action 361* 

Custody  of  defendant  by,  on  writ  of  error 437 

Ordered  to  retain  custody  of  defendant,  on  writ  of  error 440 

Discharges  defendant  on  certificate  of  bail 440-1 

Show  Cause. 

See,  Order 497 

Order  to,  injunction,  chambers  order 237 

Sickness. 

See,  Continuance,  Re-Trial. 

Of  juror,  civil  action,  generally 28 

Of  probate  judge,  N.  D 289 

Of  witness,  county  court,  testimony  of  taken 290 

Of  justice,  procedure  on 305,  330 

Of  juror,  criminal  case,  jury  discharged 396,  403 

Signature. 

Genuineness  of,  to  instrument,  admission 310-11,  339-40 

Special  Question. 

See,  Finding,  Question  of  Fact,   Question  of  Law,  Question  for  Jury, 
Verdict. 

When  not  error  to  refuse  to  submit,  to  jury 33 

When  submission  of,  presents  whole  subject,  "ordinary  care" 37 

Special  Proceeding. 

See,  Action,  Proceeding,  Order. 

What  is  a  final  order  made  in  a 238 

Order  for  release  of  property,  receiver,  when  not  a 236 

County  Court  always  open  to  hear 273 

Special  Term. 

See,  Term , 256,  272 


INDEX.  571 

Specification  of  Errors. 

See,  Assignment  of  Errors,  Exceptions,  New  Trial. 

As  related  to  exceptions,  generally 67-9 

When  none,  scope  of  review  on  appeal 131-8,  180,  481,  213,  247 

Reference  to,  in  assignment  of  error 138 

On  appeal  from  probate  to  district  court 294,  299 

When  none  in  transcript — review .463 

When  none  in  bill  of  exceptions,  disregarded 473 

When  unnecessary  in  assignment — evidence 482 

In  motion  for  new  trial 180-2 

Assignment  of  error  without,  criminal  action ,..     418,  482 

Where  none  in  transcript — record 463 

In  assignment  of  error,  court  rule 466-71 

Specification  of  Particulars. 

See,  Insufficiency  of  Evidence,  New  Trial. 

As  to  evidence,  in  notice  of  intention,  or  bill 112,  469 

In  statement  of  the  case 181-2 

Specific  Performance. 

See,  Contract '. .  .92,  158,  169-70,  203 

Speech. 

See,  Freedom  of  Speech 79 

Spring — Natural. 

See,  Water 116 

State. 

Exempted  from  giving  appeal  bond 215 

Appeal  by,  stays  execution  below — surety 224-5 

Appeal  by,  cause  has  precedence  on  calendar — stay 224-5 

A  party,  position  of  case  on  calendar 465 

Challenges  of  jury  by,  in  criminal  case 365 

State  Board. 

Appeal  by,  stays  execution  below — surety 224-5 

Appeal  by,  cause  has  precedence  on  calendar — stay 224-5 

Statement  of  Case. 

See,  Bill  of  Exceptions. 

Defined ' 66 

Containing  exceptions  to  ruling,  settled  when 69 

Settlement  of,  generally — contents  of 71-2,  253 

Amendments,  service  of 71-2 

Duty  of  judge  in  settlement  of 72 

Extending  time  for  settlement  of 72-3,  185-7 

Exceptions  after  judgment,  settlement  of 74 

Application  to  supreme  court,  to  prove '. 75 

Ex-judge  may  settle. 76 

When  trial  court  loses  jurisdiction  to  settle 76-7 

Exceptions  before  referee,  incorporated  in 59  ' 

Motion  for  new  trial  on 176-7,  180-2 

Settlement  of — not  jurisdictional 189 

What  is  neither  a,  nor  bill 184 

Used  on  appeal — all  evidence  received 187-8,, 253 

Must  bring  up,  or  bill,  on  appeal 205,  212 

On  appeal  from  justices'  court,  S.  D 314-5 

Costs  for,  Avhen  allowed,  statute 504-5 

Two  objections  raised  only  on 459 

In  county  courts 265,  276 

On  appeal  from  justice's  court 314-5 

On  appeal  from  justice's  court,  review 314-15,  319 

Ix\  criminal  procedure 414-24 


572  INDEX. 


Defined— by  whom  settled,  when 41619,  4.31 

Ex -judge  may  settle — supreme  court 419-20 

What  statutes  govern — extending  time 420-1 

What  must  contain — certificate — record 422-4 

Basis  of  motion  for  new  trial 430 

When  drafted,  etc. — motion  based  on  minutes 431 

State  Officer. 

See,  Official. 

Appeal  by,  stays  execution  below 224  5 

AppcfU  by.  cause  has  precedence  on  calendar — stay 224-5 

States  Attorney. 

Offenses  prosecuted  by  information  by,  county  court 267 

Notice  to,  of  trial,  county  court,  S.  D 269 

Jury  demanded  by,  in  criminal  case  27 1  -2 

What  complaint  before  justice,  authorizes,  to  file  information 279 

May  require  witnesses  to  give  undertaking 349 

How  many  jurors,  may  challenge  peremptorily,  capital  case 365 

Reads  plea,  opens  case 371 

Substitute  for,  in  criminal  case,  appointment 401 

Citation  in  error  served  on,  when 492 

Control  of  remarks,  to  jury,  discretion 428 

Stationery. 

For  jury,  county  pays  for 401 

Statute. 

Special  law,  livestock,  constitutionality 172 

Mechanic's  lien 172 

Right  of  appeal,  eminent  don-ain 172  3 

Chattel  mortgage,  not  filed,  creditor 173 

Exempt  property,  assignment,  attachment 1 73 

"Municipal  corporations,"  under 173 

Disbarment  of  Attorney,  statutory  grounds ■ 173 

Rep>eal  by  implication,  two  affirmative 174 

Construction  of,  for  service  of  appeal  notice 227 

Act  of  1887,  relative  to  appeals — organic  act 238 

As  to  jurisdiction  of  county  court,  S.  D.  construction  of 263 

Change  of  venue,  act  as  to,  inapplicable  to  county  court 267 

Forcible  detainer,  design  of  statute,  possession 305 

Cannot  be  read  to  jury,  criminal  case 381,  382 

No  error  to  refuse 380 

Writ  of  error  under  the,  purpose  of 432 

Statute  of  Frauds. 

See,  Contract,  Evidence. 

Conveyance  subject  to  mortgage 94 

Ownership  of  land,  memorandum 92 

.  Partnership,  not  land  sale,  parol — identity 158 

Power  of  agent  to  execute  land  sale  contract 169-70 

Sale  of  land,  agency,  authority,  contract 203 

Statute  of  Limitations. 

See,  Limitations. 

Stay  of  Proceedings. 

See,  Appeal,  Undertaking,  Judgment,  Execution. 

On  appeal  to  supreme  court 216-223 

In  criminal  cases — writ  of  error 436-7 

Issuance  of  writ  of  error  operates  as,  what  cases 436-7 

Bail  necessary  for,  when 440 

On  appeal  from  county  to  circuit,  dist.  court 283-4 

On  appeal  from  probate  court  to  district  294-6 

On  appeal  from  justice's  court 316,  318-19 


INDEX.  ^73 


On  application  for  new  trial,  criminal  case 430 

No,  on  appeal  in  contest  proceedings 216 

Stenographer. 

See,  Pees. 

Objection  to  taking  down  instructions,  waiver " 15 

Oral  instructions  taken  by .24 

Before  referee,  who  pays 63 

Minutes  of,  transcript,  not  a  record 66,  212,  459,  463,  471,  479 

In  county  courts 373'  280 

Takes  charge  to  jury,  criminal  cases,  when 372-3 

Proceedings  in  settlement  of  exceptions  without 418 

Costs  allowed  to,  for  transcript — statute 504 

Submitting  Cause. 

See,  Causes 493 

Subpoena. 

Power  of  county  court,  N.  D.,  to  issue 276 

Summons. 

See,  Process. 

When  copy  of  furnished  by  party,  on  trial 8 

Jurors,  names  of  drawn  by  clerk 9 

For  jurors,  county  court 271-2,  276 

Power  of  county  court,  N.  D.,  to  issue 276 

As  part  of  judgment  roll 139 

For  jurors,  justices'  court 309,  334-5 

Challenge  of  officer  who  served,  on  jurors 361 

Publication  of,  order  for  before  attachment 143 

Publication  "six  successive  weeks" 143 

Variance  between,  and  complaint,  county  court,  S.  D 267 

Second,  postponeiuent  of  trial  on  issuance  of 330 

Sufficiency  of  to  confer  jurisdiction,  waiver  by  appearance 316 

Of  talesmen,  justice's  court,  when 310 

Waiver  of,  justice's  court,  consent  to  judgment 121 

Supplemental  Abstract. 

See,  Additional  Abstract,  Abstract , 139,  214,  483,  484-5 

Supreme  Court. 

See,  Appeal,  Jurisdiction,  Rules  of  Supreme  Court. 

Appeals  to,  from  circuit,  dist.  court 189,  432 

Writ  of  error  sued  out  of 431-3 

Jurisdiction  of,  original,  appellate — writs 254-5,  190 

Ceases,  on  remittitur  going  down .  .447 

Terms  of,  calendar,  rules,  parties 255-7 

Adjournment  of — continuance  of 257 

Concurrence  of  judges  of  in  judgment 258 

Executes  judgments,  publication  of  rules 257-8 

Judgments  in,  concurrence,  rehearing 258,  444-5 

Held  in  other  buildings — adjournments 258 

Always  open  for  what,  writs,  process ■. 258-9 

Decisions  of,  filing,  syllabus 259 

Issue  of  fact,  sent  from  to  district 259-60 

Power  of  to  stay  proceedings  below 217 

To  make  rules  of  court 257,  520 

New  trial  in,  on  appeal 253-4 

Argument  of  writ,  or  appeal  in 442-3 

Rules  of 448,  521,  255,  257 

Order  of,  adopting  same 519-20 

Surety. 

See,  Appeal,  Undertaking,  Bail,  Guaranty." 
Amount  of  judgment  against,  on  general  verdict 44 


574  INDEX. 


Of  township  treasurer,  liability — proceeds  of  bond  sales 165 

On  undertiikiner,  appeal  to  supreme  court,  justilication 225,  227-8 

On  appeal  from  probate  court 284,  294-5 

On  appeal  from  justices'  court 316-9,  840-'3 

In  criminal  cases » 327,  349 

Insolvent,  on  appeal,  when  appeal  not  dismissed 508 

Surprise. 

And  accident,  as  ground  for  new  trial 84 

Suruey. 

Government  boundary  line 112 

Syllabus. 

Of  decisions,  contents,  filing 259 

Clerk  of  supreme  court  makes  copy '. .  .450,  452 

Talesmen. 

Summoned  in  justices'  court,  S.  D 310 

Taxation. 

Unorganized  county,  situs — dog  tax 195 

Shares  bank  stock,  parties,  payment,  recovery  back 199 

Enjoining  tax  collection,  fraud,  invalidity 144 

Declaring  tax  void — judgment  for  legal  portion -. 144-5 

Void  tax  deed,  statute  does  not  run  on 146-7 

Taxation  of  Costs. 

See,  Costs,  Appeal. 

Unnecessary  to  appeal 209 

In  supreme  court,  under  rulef^ 502  6 

Insertion  in  judgment,  items,  remittitur , 502-3 

Original  causes,  where  costs  taxed — review 503 

Appeal  from,  review — S.  D.  practice 503-4 

Term. 

See,  Adjournment,  Imprisonment,  Punishment. 

Issue  of  fact  tried  at  what — of  law •. 5 

Additional,  business  at,  trial  at — adjourned 145 

Of  supreme  court — adjournment 256  7 

Civil  cases  appealed  to,  heard  at  what 254 

Of  county  courts 269,  271-2,  274 

Writ  of  error,  criminal  appeal,  heard  at  what 442-3 

Of  imprisonment,  too  long — deduction  of  part 445,  448 

Notice  of  appeal  served  when,  for  next 452-3 

Criminal  appealed  causes  decided  at  what 464-5 

Briefs,  abstracts,  served  how  long  before 490-1 

Call  of  calendar,  causes,  on  first  day  of 494  5 

"What  motions  noticed  for  first  day  of 513-4 

Petition  for  rehearing,  heard  at  what 498-9 

Decision,  filed  how  long  before  end  of 498 

Terms. 

See,  Costs. 

When  imposed,  service  of  additional  abstract 485 

Testimony. 

See,  Evidence,  Witness. 

Expert,  object  on  street,  fright — handwriting 130,  378 

Of  defendant's  wife,  U.  S.  rule,  statute  inapplicable 386 

Of  all  eye-witnesses,  unnecessary  to  produce 429 

Time. 

See,  Calendar,  Term,  Adjournment,  Motion. 

Allowed  for  argument,  supreme  court 493-4 

To  plead,  given  by  rule,  affidavit  of  merits 521 

Statement  of  case  after,  dismissal  motion  for  new  trial 185 


iNbEX  575 

Failure  to  file  transcript  in,  dismissal  of  appeal 464 

Title. 

See,  Claim  and  Delivery. 

Plaintiff  must  show — ejectment 146 

Insurance,  divestiture  of,  void  foreclosure 157 

Question  of,  in  ejectment,  eviction  necessary 19 

Ne^lig:ence,  right  of  way,  possession  or,  immaterial 166 

Conveyance  of,  to  land,  pending  suit,  damages  in  ejectment .171 

In  forcible  entry  and  detainer,  certifying  case 305 

To  realty,  doubtful  question,  injunction 93 

Town. 

See,  Municipal  Corporation,  Taxation. 
Exempted  from  giving  appeal  bond 215 

Township  Justices. 

County  courts,  jurisdiction  of  appeals  from 264,  275 

Transcript 

See,  Judgment  Roll,  Record,  Certificate,  Bill  of  Exceptions,  Statement 
of  Case. 

On  appeal,  from  county  to  circuit,  dist.,  court 265,  274-5 

On  appeal,  probate  court  to  circuit,  dist 285,  287,  297 

On  appeal,  from  justice's  to  circuit,  dist.,  court 315,  318,  321,  343 

In  criminal  cases 328,  350 

On  change  of  venue,  justice's  court 306-7,  332-3 

In  criminal  cases 322 

Of  indictment,  information,  to  other  county,  when 392-3 

On  writ  of  error,  appeal,  supreme  court 438,  457-63 

On  appeal  to  supreme  court 210,  438 

Under  supreme  court  rules 457,  463 

What  is,  and  is  not,  proper  transcript 458-60,  463,  512 

Original  papers,  when  sent  up 458,  463 

Further  return  to — order  for 519 

Of  stenographer,  costs  for,  on  appeal 504 

Of  stenographer,  no  part  of  record 66,  212,  459,  463,  471,  479 

Treason. 

Proof,  witnesses,  confession 387 

Trial. 

See,  Challenges,  and  the  various  Courts,  New  Trial. 

Defined 3 

Of  issue  of  law,  in  what  county 5 

Appeal  from  judgment  or  decision,  court  trial 5 

Either  party  proceeds  to,  when 7 

Separate,  when  allowed 7,  8 

Order  of,  civil  action 13 

By  the  court 45,  53 

Decision  upon,  when  given 46 

Filing  of  mandatory 47 

Waiver  of 47 

Judgment  upon 46-7 

Facts  found,  and  conclusions,  separate  statement 49 

Conclusions  and  judgment  distinct 49 

Appeal,  review  of  decision  on — of  facts  or  law 244,  250 

All  evidence  received  on,  review,  appeal 253-4 

In  probate  courts 266,  290 

In  county  courts 267-272,  278-280 

In  justice's  court 302-311,  333-7 

In  criminal  cases 322-5 

Of  criminal  cases,  generally .  t 351-401 

Defendant  present,  preparation. 352-3 


576  INDEX. 


Formation  of  trial  jury 353-358 

Challenging  the  jury 359  371 

The  trial  proper  371-401 

Order  of  -instructions 371-81,  398-9 

Separate — discharge  to  testify,  acquittal 383 

Discharge,  want  of  evidence — defendant  witness 374-5 

For  conspiracy,  treason,  accomplice 387-9 

For  false  pretenses — personating — seduction 389  90 

For  abortion — jeopardy — retrial — jurisdiction 390-2 

Acquittal  aavised— view — juror  witness 394-5 

Custody  of  jury — officer — sick  juror 395-7 

Murder,  burden  of  proof— bigamy — forgery 397 

Charge  to  jury — jury,  refreshments,  separation 398-9 

In  absence  of  defendant,  new  trial 425 

Of  original  actions  in  supreme  court 517-18 

Trial  by  Jury. 

See,  Trial,  Jury,  Waiver. 

Right  of,  in  what  cases,  circuit,  dist.  court 3 

Constitutional  provisions 4 

How  waived 45 

In  county  court 271-2,  278 

In  justices'  court 308-9 

In  criminal  cases,  generally 351-401 

Waiver  of 352 

Trial  by  Referees. 

Reference  by  consent,  in  what  cases 54 

Reference  without  consent 55 

Order  for. ... 54-5 

Fees  of  referees 54,  63 

To  whom  referred 56 

Objections  to  referee v 56-7 

How  heard 57 

Trials,  before  referees, ■ 58-9 

Notice  of 58 

Powers  of  referees,  on  trial 58 

Several  referees,  powers  of,  majority  act t 59 

Findings  and  conclusions  separately  stated 58,  60 

Omitted  findings — added  conclusions 60 

Exceptions  to  findings 59,  60,  62 

Exceptions  incorporated  with  statement  (N.  D.) 59 

Report  incorporated  in  bill  of  exceptions  (S.  D.) 62 

Report  on  trial,  contents  of,  when  made 58,  59,  61 

Review  on  report 58,  59,  60 

Notice  of  filing  report 59,  61 

Judgment  on  report 59,  61 

Without  confirmation,  when 62 

New  trial 62 

Appeal  from  judgment — review — facts 59,  62,  244 

Re-reference 59,  62 

Costs  on 62 

Stenographer,  appointment  of — duties — fees 63 

Neglect  to  pay  damages  assessed  on  reference — bond 230 

When  presumed  that  agreement  for  filed 489 

Trial  De  Novo.  v 

See,  Trial,  New  Trial,  Re-Trial,  Appeal. 

On  appeal,  probate  to  circuit,  dist.  court,  when 286,  299 

On  appeal,  justices'  court  to  circuit,  dist 315,  344 

In  criminal  cases,  N.  D ; 350 

In  S.  D.,  remand  to  justice  for 328-9 


INDEX.  577 


On  appeal,  to  supreme  court — evidence 253-4,  481 

None,  on  appeal  to  Territorial  court 247 

Under  new  N.  D.  statute,  defective  certificate  of  evidence 213 

No,  on  appeal,  but  facts  reviewed,  when 155 

On  appeal  from  justice  to  county  court,  judgment  on 266-7 

Trust 

Property  in,  suit  at  law,  when •. . .  143 

Trustee. 

Taking  deed  as  security 35 

Action  against,  by  beneficiary — open  trust 143 

Typewritten  Papers. 

See,  Papers. 

Required  on  motions,  affidavits,  in  supreme  court 497 

Petition  for  rehearing  to  be  on — service  of 498-9 

Furnished  on  appeal,  civil  actions,  N.  D.,  when 254 

Ultra  I/ires. 

National  bank,  purchase  of  note  by 22 

Bank  purchasing  note 147 

Municipal  bond.s,  conditions,  consideration,  estoppel 164 

School  corporation,  existence  of,  coupons 165 

Undertaking. 

See,  Appeal.  Witness,  Service,  Money. 

On  appeal  to  supreme  court,  generally 204 

Transmission  of,  by  clerk 210-1 

By  state,  none  required — conditions  of,  for  stay 215-24 

New  one,  consequence  of  default  as  to 225-6 

In  one  or  several  instruments — justification 226-7 

Damages  on  breach  of,  reference 230-1 

On  appeal  from  county  court 274,  294-5 

On  adjournment,  justice's  court 304 

On  appeal  from  justices'  court 312,  316-8,  340-2 

In  criminal  cases 327,  349 

Of  witness,  on 328,  332 

On  appeal  in  criminal  cases — new  one 440,  442 

By  defendant,  held  for  trial  in  other  county 392-3 

Informal,  additional  abstract  to  correct,  proper 486 

New  one  permitted  by  supreme  court,  when -507 

What  service  of,  good — dismissal  of  appeal 508 

Usage. 

See,  Custom 160 

Usury. 

See,  Promissory  Note , 113 

l/acation. 

See,  Order,  Judgment. 

Rehearing,  when  granted  in,  N.  D.,  argument  on 498-9 

Opinions  filed  in,  supreme  court,  N.  D 502 

Supreme  court  issues  process  returnable  in 518^9 

Decisions  of  filed  in 259 

What  orders  for,  of  orders  or  judgments,  appealable 237,  238,  242 

What  orders  refusing,  of  orders  or  judgments,  appealable 234,  237,  509 

Same,  not  appealable 235,  238,  242-3 

Should  move  for,  of  non-appealable  orders 237 

Of  verdict  on  court's  motion,  what  should  appear 135 

Of  judgment— process,  affidavits 201,  151 

Value. 

See,  Claim  and  Delivery,  Verdict. 
When  jury  to  find,  of  property 39,  40 


578  INDEX. 


Of  use  of  property,  claim  and  delivery,  bond 42,  172 

Of  use  of  land,  evidence  justifyinjj  verdict , 95 

Of  notes  in  settlement,  verdict  for  face,  erroneous 113 

Allejratioii  of,  evidence  of  contract,  theory  of  recovery 117 

Of  cattle,  opinion  evidence  of . .  130 

Of  wheat,  conversion,  instruction   concerning' 133 

Finding  of,  and  special  verdict,  claim  and  delivery 114 

Variance. 

Between  summons  and  complaint,  dismissal 267 

Venire. 

For  jury,  county  courts 271-2,  276 

For  jury,  justices'  courts .309,  335 

Venue. 

County  court,  S.  D,,  which  county,  service  of  summons 266 

Civil  practice  act  not  applicable  to 267 

Order  denying  change  of,  appealable 241 

Change  of,  county  court 267,  275 

Change  of,  justices'  court 306-7,  332-3 

In  criminal  cases,  only  one ; 322.  332 

Indictment  in  one  county,  crime  in  another,  procedure 392-3 

Verdict. 

See,  Assignment  of  Error,  New  Trial. 

The  verdict,  generally,  civil  action 32-45,  134-5 

When  taken  in  absence  of  adverse  party 7 

Prevented,  new  trial  because  of 28 

Sealed,  when  directed  to  be  brought  in . .        29 

Delivery  of,  civil  action — irregularity 29,  81 

Rendition  of,  civil  action 29 

By  three-fourths  of  jury,  when 30 

Corrected  in  form 31 

Findings  by 31,  32 

General  and  special  defined 32,  33 

Decisions  as  to  what  is 35-38 

In  relation  to  issues 32,  33 

And  findings. .    33 

When  jury  may  render  general  or  special 34 

Direction  of  special 34 

Substitution  of  court's  findings  for 38 

When  to  find  amount  of  recovery 39 

When  to  find  value  and  damages 39,  40 

When  to  find  value  of  party's  Interest  in  property, 40 

Entry  of,  civil  action ,    44 

What  judgment  entered  on 44-5 

"Quotient  verdict" 83 

Directing — new  trial 99,  100 

Directed,  is  court's  ruling 101 

Against  law 78,  113-4,  134 

Which  cannot  stand 113 

Neither  general  nor  special 114,  135 

Error  in  law,  in  relation  to 134-5 

Generally — nothing  to  review — ownership.' 134 

General  verdict — against  instructions 134-5 

Special  finding 134 

Directing — motion  for — is  error  of  law,  when 135 

As  to  negligence,  presumption — sale,  warranty 135 

Vacation  of,  on  court's  motion 135 

In  justices'  court 324-5,  337-8,  346-7 

In  criminal  cases,  generally 404-14 


INDEX.  579 


Prevented,  re-trial,  time  of 403-4 

Return  of,  procedure — general,  special,  libel 405 

Oral,  unless — general  defined — insane  defendant 406 

Special,  conclusions  of  fact,  form  of 406-8 

Argument  of,  judgment  on,  pleas 407-8 

New  trial  ordered  on,  when 408 

Degree  of  crime,  when  finds— ambiguous , 409-10 

Form  of,  on  plea  of  former  conviction 410 

Several  defendants — informal,  of  guilty 411 

Reconsideration  of,  neither  general  nor  special 412 

Informal,   persisting  in — polling  of,  procedure 412-3 

Recording  of — disagreement,   discharge  of 413 

Judgment  of  acquittal,  discharge,  detention 413 

Not  impeached  by  juror's  testimony 83,  427 

Setting  forth  of,  in  abstract  on  appeal 475 

"Against  law,"  assignment  of  error,  nothing  to  review! 472 

Voluntary  Appearance. 

See,  Appearance 454,  507 

Waiuer.  • 

See,  Jury  Trial. 

Of  damages,  counterclaim,  warranty 18 

Of  oral  instructions— taking  of  by  jury 27,  80 

Of  question  for  jury 45 

Of  tiling  of  decision,  court  trial 47 

Of  findings  of  fact,  how 51-2,  459 

As  to  incompetent  evidence — entry  of  judgment 62 

Of  objection,   presenting  bill  for  settlement 72 

Of  want  of  preparation  for  trial — continuance 84 

Of  submission  of  case  to  jury,  directing  verdict 102,  146 

Of  statutory  lien,  other  security 114 

Of  objection  to  defective  complaint — amendment 118-19,  121 

Of  tort — ^assumpsit,  conversion 122 

Of  other  grounds,  by  special  objection 131 ,  468 

Of  notice  of  loss,  proof  of 131-2 

Of  objection  to  court's  construction  of  contract 133 

Of  warranty,  sale  note 135 

Of  confirmation  of  referee's  report 136 

Of  findings  by  court,  presumption 137,  459 

Not  part  of  judgment  roll 459 

Of  notice  of  appeal,  voluntary  appearance 454 

Of  application  for  judgment , 460 

Of  question  for  jury • 146 

Of  claim  for  rents,  "profits,  on  trial,  mortgagor  157 

Notice  of  intention,  indispensable,  unless  waived 179 

Of  justice  of  appeal,  ineffectual,  jurisdiction 204 

Of  objection  to  attorney  as  surety,  neglect  to  except 228 

Of  right  to  appeal,  accepting  benefit  under  judgment 251 

Of  irregularity  in  remittitur,  appearance  on  trial 252 

Of  objection  to  jurisdiction,  county  court 261 

Of  jury  trial,  county  court,  N.  D 278 

Of  preliminary  examination  before  information,  complaint,  authority. .  .279 

Of  jury,  justice's  court 308,  334 

No,  of  "appeal,  by  appearance,  jurisdiction 316 

Of  irregularity  in  calling  jurors'  names— box 355,  362 

Warrant 

Void,  ratification  of,  public  corporation 102 

County  court,  N.  D.,  power  of  to  issue 276 


580  INDEX. 


Warranty. 

See,  Sale,  Contract. 

General,  covenant  of,  in  deed,  prospective 19 

Sale  of  boiler,  directinjf  verdict,  waiver 18 

Sale  of  sejmrator,  note,  waiver  of 18,  105 

In  sale  note,  waiver  of 135 

Purchase  note,  bona  fide  holder 147 

Of  title,  eviction 103 

Useless  machine,  evidence  of  value,  error 161 

Breach  of,  verbal  notice  of  by  agent,  writing  required 1«>1 

Vendee's  credit  to  rebut  evidence  of ■.'. 161 

Water. 

Percolating,  ownership,  presumption 116,  195 

Will. 

stay  on  appeal,  as  to  probate  of  or  revoking 284-5,  296 

Witness. 

See  Evidence,  Declarations. 

Examination  of,  new  trial 122-125 

Direct — imcompetent  question — preliminary  proofs 122 

Not  responsive — striking  out 123 

Blind  preliminary  question^— offer 123 

Prejudice — leading  questions 123 

Cross-examination — scope  of— conversation 123-4,  378 

Of  own  witness — surprise — impeachment 124 

Of  defendant,  rule  of — accomplice  , 378,  386-7 

To  show  relation  of  witness  and  accused 428 

Interest  of  witness — attorney's  compensation 124 

Opening  case  by — introducing  defense  on . . .' 125 

Redirect — scope  of — agency 125 

Of  witness  in  criminal  case — inferences 428 

In  county  courts 272,  276 

In  probate  court — of  sick 290 

In  justice's  court 303,  321,  328,  345 

Undertaking  by,  justice's  court 328,  349 

In  circuit  and  district  court,  criminal  case 390 

On  trial  of  challenge,  criminal  cases 369-70 

Argumentative  comparison  of,  by  court 375 

Oral  notice  of,  before  trial 377 

Not  named  on  indictment — not  before  grand  jury 377 

Discharge  of  defendant  to  be  a,  for  state ,384 

Defendant  a,  on  his  own  behalf^ — refusal 385 

To  avert  act,  treason 387 

Juror  may  be,  to  fact  within  knowledge 395 

Credibility,  rebuttal  as  to  prejudicial  practices 428 

Volunteering  testimony — withdrawal 428 

All  eye-witnesses,  unnecessary  to  pi-oduce 429 

Writ. 

See,  Writ  of  Error,   Mandamus,   Certiorari,    Execution,   Attachnent, 

Habeas  Corpus. 

Subreme  court  issues  what .* 190,  254-5 

Stands  over  term  when ...  257 

Al  ways  open  for  issuance  of , . .  .268-9 

Marshal  of,  executes 518  19 

Signing,  seal,  returnable  when  (N.  D.) 518-19 

County  court,  S.  D.,  power  to  issue 264 

Writ  of  Error. 

Unnecessary  to  appeal 194 

Unnecessary,  city  ordinance,  violation  of,  appeal 207 


INDEX.  581 


To  county  court,  S.  D.,  from  supreme 265-6 

May  be  allowed  from  county  court 263 

From  supreme  to  circuit  court 431-41 

Who  sues  out,  from  what  decisions ,    431-4 

Under  supreme  court  rules 454-5 

Petition  for,  plaintiff  in  error,  title 433 

Under  supreme  court  rules— recitals 455 

When  filed — consequence  of  failure 467 

Defendant  sues,  from  what — by  state 434 

Time  for  suing  out— execution,  effect  on . . .    435-6 

Stays  execution,  capital  cases '. .  .436 

Certificate  probable  cause — defendant's  custody 436-7 

Suspension  of  judgment  on,  when 437 

Transcript  sent  up  on,  clerk,  filing 438 

Court  rule,  tbis  section  foundation  of 438,  457 

Retui'n  to,  certificate  of  judge,  bill  of  exceptions 439 

Under  supreme  court  rules 457 

Bills.of  exception  on,  specifications,  disallowance 439 

Citation,  issuance,  service — certiorari 439-40 

Under  supreme  court  rules 455-7 

Return  of  citation,  when  returnable 457 

Dismissal  of,  for  irregularity 441-2 

In  what  cases,  return — motion,   notice — time 441-2 

Argument  of,  term,  notice 442-3 

Record,  who  furnishes— default,  dismissal 443 

Affirmance  on  default— i-ever sal  after  argument 443 

Counsel,  number  of  heard  on .444' 

Writings. 

See,  Evidence 125 


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